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Title: Copyright: Its History and Its Law
Author: Bowker, Richard Rogers, 1848-1933
Language: English
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Copyright Status: Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook. See comments about copyright issues at end of book.

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          Richard Rogers Bowker

  COPYRIGHT: ITS HISTORY AND ITS LAW.

  THE ARTS OF LIFE.
  OF BUSINESS.
  OF POLITICS.
  OF RELIGION.
  OF EDUCATION.

       HOUGHTON MIFFLIN COMPANY

         BOSTON AND NEW YORK



             COPYRIGHT

       ITS HISTORY AND ITS LAW

        BEING A SUMMARY OF THE
  PRINCIPLES AND PRACTICE OF COPYRIGHT
       WITH SPECIAL REFERENCE TO
     THE AMERICAN CODE OF 1909 AND
        THE BRITISH ACT OF 1911

                 BY

        RICHARD ROGERS BOWKER



         BOSTON AND NEW YORK
       HOUGHTON MIFFLIN COMPANY
     The Riverside Press Cambridge
                1912



   COPYRIGHT, 1912, BY R. R. BOWKER

        ALL RIGHTS RESERVED
         FOR ALL COUNTRIES

       _Published March 1912_



FOREWORD


{Sidenote: Copyright progress}

The American copyright code of 1909, comprehensively replacing all previous
laws, a gratifying advance in legislation despite its serious restrictions
and minor defects, places American copyright practice on a new basis. The
new British code, brought before Parliament in 1910, and finally adopted in
December, 1911, to be effective July 1, 1912, marks a like forward step for
the British Empire, enabling the mother country and its colonies to
participate in the Berlin convention. Among the self-governing Dominions
made free to accept the British code or legislate independently, Australia
had already adopted in 1905 a complete new code, and Canada is following
its example in the measure proposed in 1911, which will probably be
conformed to the new British code for passage in 1912. Portugal has already
in 1911 joined the family of nations by adherence to the Berlin convention,
Russia has shaped and Holland is shaping domestic legislation to the same
end, and even China in 1910 decreed copyright protection throughout its
vast empire of ancient and reviving letters. The Berlin convention of 1908
strengthened and broadened the bond of the International Copyright Union,
and the Buenos Aires convention of 1910, which the United States has
already ratified, made a new basis for copyright protection throughout the
Pan American Union, both freeing authors from formalities beyond those
required in the country of origin. Thus the American dream of 1838 of "a
universal republic of letters whose foundation shall be one just law" is
well on the way toward realization.

{Sidenote: Field for the present treatise}

In this new stage of copyright development, a comprehensive work on
copyright seemed desirable, especially with reference to the new American
code. Neither Eaton S. Drone nor George Haven Putnam were disposed to enter
upon the task, which has therefore fallen to the present writer. He hopes
that his participation for the last twenty-five years in copyright
development,--during which, as editor of the _Publishers' Weekly_ and of
the _Library Journal_, he has had occasion to keep watch of copyright
progress, and as vice-president of the American (Authors) Copyright League,
he has taken part in the copyright conferences and hearings and in the
drafting of the new code,--will serve to make the present volume of use to
his fellow members of the Authors Club and to like craftsmen, as well as to
publishers and others, and aid in clarifying relations and preventing the
waste and cost of litigation among the coördinating factors in the making
of books and other forms of intellectual property.

{Sidenote: Authorities and acknowledgments}

The present work includes some of the historical material of the
Bowker-Solberg volume of 1886, "Copyright, its law and its literature."
This material has been verified, extended and brought up to date,
especially in the somewhat detailed sketch of the copyright discussions and
legislation resulting in the "international copyright amendment" of 1891
and the code of 1909. The volume is in this respect practically, and in
other respects entirely new. It has had the advantage of the cordial
co-operation of the copyright authorities at Washington, especially the
Librarian of Congress, Herbert Putnam, and the Register of Copyrights,
Thorvald Solberg; also of helpful courtesy from the Canadian Minister of
Agriculture in the recent Laurier administration, Sidney Fisher, and the
Canadian Registrar of Copyrights, P. E. Ritchie, and of Prof. Ernest
Röthlisberger, editor of the _Droit d'Auteur_, and one of the best
authorities on international copyright. This acknowledgment of obligation
is not to be taken as assuming for the work official sanction and
authority, though so far as practicable, it reflects the opinions of the
best authorities. The writer has also consulted freely--but it is hoped
always within the limits of "fair use"--the best law book writers,
especially Drone, Copinger, Colles and Hardy, and MacGillivray, to whom
acknowledgment is made in the several chapters. Acknowledgment is also made
for the courtesies of Sir Frederick Macmillan, G. Herbert Thring, secretary
of the British Society of Authors, and others numerous beyond naming. But
most of all the writer is indebted to the intelligent and capable
helpfulness of Carl L. Jellinghaus, who as private secretary, has been both
right hand and eyes to the writer, and besides participating in the work of
research, is largely responsible for the index and other "equipment" of the
volume.

{Sidenote: Method and form}

Copyright law is exceptionally confused and confusing, and even the new
American and British codes are not without such defects. Specific subjects
are so interdependent that it has been difficult to make clear lines of
division among the several chapters, and there is necessarily repetition;
it has been the endeavor to concentrate the main discussion in one place,
designated in the index by black face figures, with subordinate references
in other chapters. Ambiguities in the text of this volume often reflect
ambiguities in the laws, particularly of foreign countries. Where acts,
decisions, etc., are quoted in the text or given in the appendix, spelling,
capitalization, punctuation, headings, etc., follow usually the respective
forms, thus involving apparent inconsistencies. Side-headings in the
appendix follow usually the official form, unless shortened to prevent
displacement. Translations of foreign conventions follow usually the
official text of the translation, but have been corrected or conformed in
case of evident error or variance. Citation of cases is confined for the
most part to ruling or recent cases or those of historic importance or
interest. Though it has not been practicable to verify statements from the
copyright laws of so many countries in divers languages, a fairly
comprehensive and accurate statement of the _status_ of copyright
throughout the world is here presented. The present work, originally
planned for publication in 1910, has been held back and alterations and
insertions made to bring the record of legislation to the close of 1911.
For those who wish to keep their copyright knowledge up to date, the
_Publishers' Weekly_ will endeavor to present information as to the English
speaking world, and the monthly issues of the _Droit d'Auteur_ of Berne,
under the editorship of Prof. Röthlisberger, will be found a comprehensive
and adequate guide.

{Sidenote: Advocates of authors' rights}

The preparation of this work brings a recurring sense of the losses which
the copyright cause has suffered during the long campaign for copyright
reform, beginning in the American Copyright League, under the presidency of
James Russell Lowell, and continued under that of Edmund Clarence Stedman,
both of whom have passed over to the majority. Bronson Howard, always
active in the counsels of the League as a vice-president, and the foremost
advocate of dramatic copyright as president of the American Dramatists
Club, failed, like Stedman, to see the fulfillment of his labors in the
passage of the act of 1909. George Parsons Lathrop, Edward Eggleston,
Richard Watson Gilder, "Mark Twain" and other ardent advocates of the
rights of the author, gave large share of enthusiasm and effort to the
cause. Happily the two men who for the last twenty years and more have
labored at the working oar for the Authors League and for the Publishers
League, are still active in the good work, ready to defend the code against
attack and eager to forward every betterment that can be made; to Robert
Underwood Johnson, the successor of the lamented Gilder as editor of the
Century, and to George Haven Putnam, the head of the firm which still bears
the name of his honored father, authors the world over owe in great measure
the progress which has been made in America toward a higher ideal for the
protection of authors' rights.

{Sidenote: Copyright evolution}

It may be noted that while throughout the British Empire English precedent
is naturally followed, the more restrictive American copyright system has
unfortunately influenced legislation in Canada and Newfoundland, and in
Australia. France, open-handed to authors of other countries, has afforded
precedent for the widest international protection and for the international
term; while Spain, with the longest term and most liberal arrangements
otherwise, has been followed largely by Latin American countries. The
International Copyright Union has reached in the Berlin convention almost
the ideal of copyright legislation, and this has been closely followed in
the Buenos Aires convention of the Pan American Union. The world over,
there seems to have been a general evolution of copyright protection from
the rude and imperfect recognition of intellectual property as cognate to
other property, for a term indefinite and in a sense perpetual, almost
impossible of enforcement in the lack of statutory protection and
penalties. Systems of legislation, at first of very limited term and of
restricted scope, have led up to the comprehensive codes giving wide and
definite protection for all classes of intellectual property for a term of
years extending beyond life, with the least possible formalities compatible
with the necessities of legal procedure. Unfortunately in the United States
of America the forward movement which produced the "international copyright
amendment" of 1891 and the code of 1909, conspicuously excellent despite
defects of detail, was in some measure offset by retrogression, as in the
manufacturing restrictions. Until this policy, which still remains a blot
on the 'scutcheon, is abandoned, as the friends of copyright hope may
ultimately be the case, the United States of America cannot enter on even
terms the family of nations and become part of the United States of the
world.

                        R. R. BOWKER.

December, 1911.

POSTSCRIPT. Since this book has been passing through the press, Cuba has
been added to the countries in reciprocal relations with the United States
with respect to mechanical music by the President's proclamation of
November 27, 1911; Russia has made with France its first copyright treaty,
in conformity with the new Russian code of 1911; and the new British code,
referred to on p. 33, having passed the House of Commons August 17, passed
the House of Lords December 6, and after concurrence by the House of
Commons in minor amendments, mostly verbal, became law by Crown approval,
December 16, 1911, as noted on p. 374. The text of the act in the appendix
follows the official text as it now stands on the English statute books;
the summary (pp. 374-80) describes the act as it became law--and the
earlier references are in accordance therewith, with a few exceptions.
These exceptions mostly concern immaterial changes, made in the House of
Lords. Within January, 1912, Brazil has adopted a new measure for
international copyright, and a treaty has been signed between the United
States and Hungary, the twenty-fifth nation in reciprocal relations with
this country.



  CONSPECTUS OF COPYRIGHT BY COUNTRIES                          Page xi


Under the names of countries are given dates of the basic and latest
amendatory laws. International relations are shown by the name in SMALL
CAPS of the convention city when a country is a party to the International
Copyright Union or the Pan American conventions, and by the names of
countries with which there are specific treaties, excepting those within
the union or conventions. The general term of duration is entered, without
specification of special terms for specific classes. Places of registration
and deposit are indicated by R and D when these are not the same. The
number of copies required and in some cases period after publication within
which deposit is required are given in parentheses. Notice of copyright or
of reservation is indicated. Special exceptions or conditions are noted so
far as practicable under remarks. An asterisk indicates that specific
exceptions exist.

The International Copyright Union includes (A) under the Berlin convention,
1908 (a) without reservation Germany, Belgium, Luxemburg, Switzerland,
Spain, Monaco, Liberia, Haiti, Portugal, and (b) with reservation France,
Norway, Tunis, Japan; (B) under the Berne convention, 1886, and the Paris
additional act and interpretative declaration, 1896, Denmark, Italy; (C)
under the Berne convention, 1886, and the Paris additional act, 1896, Great
Britain; (D) under the Berne convention, 1886, and the Paris interpretative
declaration, 1896, Sweden. The Pan American conventions agreed on at Mexico
City, 1902, Rio de Janeiro, 1906, and Buenos Aires, 1910, have not been
ratified except that of Mexico by the United States and by Costa Rica,
Guatemala, Honduras, Nicaragua, Salvador, and doubtfully by Cuba and
Dominican Republic; that of Rio by a few states insufficient to make it
anywhere operative; and that of Buenos Aires by the United States. The
South American convention of Montevideo, 1889, has been accepted by
Argentina, Paraguay and Uruguay, Peru and Bolivia, and has the adherence
(in relation with Argentina and Paraguay only) of Belgium, France, Italy
and Spain. The five Central American states have a mutual convention
through their Washington treaty of peace of 1907.

  ---------------------------------------------------------------------------
     Countries  |  International  |         | Registration|         |
   Dates of laws|    relations    | Duration| and Deposit |  Notice | Remarks
  --------------+-----------------+---------+-------------+---------+--------

{Sidenote: North America: English}

  North America |                 |         |             |         |
    (ENGLISH-   |                 |         |             |         |
      SPEAKING) |                 |         |             |         |
  United States |MEXICO, B. AIRES,| 28 + 28 |Library of   |"Copy    |Manufac-
    1909        |Gt. Brit., Belg.,|         |Congress (2  |-right,  |ture
                |China, Den., Fr.,|         |"promptly")  |19--, by |within
                |Ger., It., Jap., |         |             |A. B." or|U. S. for
                |Lux., Nor., Sp., |         |             |statutory|books,
                |Swe., Switz.,    |         |             |equiva-  |etc.
                |Aust., Hol.,     |         |             |lent     |
                |Port., Chile,    |         |             |         |
                |Costa R., Cuba,  |         |             |         |
                |Mex.             |         |             |         |
  Canada        |_See_ Gt. Brit.  | 28 + 14 |Dept. of     |"Copy-   |Printing
    1875-1908   |(Aus.-Hung.      |         |Agriculture: |right,   |and publ.
    [1912 ?]    |excepted)        |         |Copyright    |Canada   |within
                |                 |         |Branch (3)   |19--, by |Canada.*
                |                 |         |             |A. B." or|
                |                 |         |             |signature|
                |                 |         |             |of artist|
  Newfoundland  |_See_ Gt. Brit.  | 28 + 14 |Colonial     |"Entered,|Printing
    1890-1899   |                 |         |Sec. (2)     |Newf.... |and publ.
                |                 |         |             |by A. B."|within
                |                 |         |             |etc. or  |Newf.*
                |                 |         |             |signature|
                |                 |         |             |of artist|
  Canal Zone    |                 |         |             |         |
    (U. S.)     |_See_ U. S.      |         |             |         |
  Porto Rico    |                 |         |             |         |
    (U. S.)     |_See_ U. S.      |         |             |         |
  Jamaica (Br.) |_See_ Gt. Brit.  | Life + 7|(3 or 1*     |   None  |
    1887        |                 | or 42*  |within mo.)  |         |
  Trinidad (Br.)|_See_ Gt. Brit.  | Life + 7|Registrar of |   None  |
    1888        |                 | or 42*  |copyright (3 |         |
                |                 |         | within mo.) |         |

{Sidenote: Europe: English}

  Europe        |                 |         |             |         |
  Great Britain |BERNE-PARIS A    | Life + 7|R Stationers |  None*  |First or
    & Ireland   |U. S., Aus.-     | or 42*  |Hall (before |         |simulta-
    D 1842-1906 |Hung.*           | [Life + |suit)*       | [None]  |neous pub-
    I 1844-1886 |                 | 50*]    |D British    |         |lication
                |                 |         |Museum (1)   |         |
    [1911]      |                 |         |+ 4 library  |[No reg- |[In
                |                 |         |copies (on   |istra-   | effect
                |                 |         |demand)*     |tion]    |1912]
  Isle of Man   |_See_ Gt. Brit.  |         |             |         |
    1907        |                 |         |             |         |
  Channel Isles |_See_ Gt. Brit.  |         |             |         |

{Sidenote: French}

  France        |BERLIN* MONTV.*  |Life     |D Ministry   |  None   |
    1793-1910   |U. S., Aus-Hung.,| + 50*   |of Interior  |         |
                |Hol., Port.,     |         |or prefecture|         |
                |Mont., Roum.,    |         |(2 before    |         |
                |Lat. Amer.       |         |suit)*       |         |
  Belgium       |BERLIN, MONTV.*  |Life + 50|   None*     |  None*  |
    1886        |U. S., Aus.,     |         |             |         |
                |Hol., Port.,     |         |             |         |
                |Roum., Mex.      |         |             |         |
  Luxemburg     |BERLIN           |Life     |   None*     |  None*  |
    1898        |U. S.            |+ 50*    |             |  (res.  |
                |                 |         |             |  playr.)|
  Holland       |U. S., Belg.,    |  50 or  |Dept. of     |  None*  |Printing
    1881        |Fr.              |  life*  |Justice (2   | (res.   |within
    [1912?]     |                 |         |within mo.)  |  trans. |Holland
                |                 |         |             | playr.) |

{Sidenote: German}

  Germany       |BERLIN           | Life    |  None*      |  None*  |
    1901-1910   |U. S., Aus.-Hung.| + 30*   |             |         |
  Austria       |Hung., U. S.,    | Life    |  None*      |  None*  |
    1895, 1907  |Gt. Brit.,* Belg.| + 30*   |             |(res.    |
                |Den, Fr., Ger.,  |         |             | trans.  |
                |It., Roum., Swed.|         |             | photos, |
                |                 |         |             | mus.)   |
  Hungary       |Aust., Gt.       | Life    |  None*      |  None*  |
    1884        |Brit.,*Fr., Ger.,|  + 50*  |             | (res.   |
                |It.              |         |             | trans.  |
                |                 |         |             | photos) |

{Sidenote: Scandinavian}

  Switzerland   |BERLIN           | Life    |R. Office of |  None*  |
    1874, 1883  |U. S.            | + 30*   |Intel. Prop. | (res.   |
                |                 |         |optional*    | playr.) |
  Denmark       |BERNE-PARIS      | Life    |  None*      |  None*  |
    1865-1911   |U. S., Aus.      | + 50*   |             |(photos, |
                |                 |         |             | res.    |
                |                 |         |             | music)  |
  Iceland (Den.)|_See_ Denmark    |         |             |         |As in
    1905        |                 |         |             |         |Denmark
  Norway        |BERLIN*          |Life     |  None*      |  None*  |
    1877-1910   |U. S.            | + 50*   |             |(photos, |
                |                 |         |             | res.    |
                |                 |         |             | music)  |
  Sweden        |BERNE-PARIS D    |Life     |  None       |  None*  |
    1897-1908   |U. S., Aus.      | + 50*   |             |(photos, |
                |                 |         |             | res.    |
                |                 |         |             | playr.) |

{Sidenote: Russian}

  Russia        |France           | Life    |             |  None*  |
    1911        |                 | + 50*   |             |(photos, |
                |                 |         |             | res.    |
                |                 |         |             | trans.  |
                |                 |         |             | mus.)   |
  Finland       |   None          | Life    |  None*      |  None*  |
    1880        |                 | + 50*   |             |         |

{Sidenote: Southern}

  Spain         |BERLIN, MONTV.*  | Life    |Register of  |  None*  |Special
    1879-1896   |U. S., Port.,    |  + 80*  |Intel. Prop. |         |provisions
                |Lat. Amer.       |         |(3 within    |         |
                |                 |         |one year*)   |         |
  Portugal      |BERLIN           | Life    |Pub. Lib.*   |  None   |
    1867, 1886  |U. S., It., Sp., |  + 50*  |(2 before    |         |
                |Bra.             |         |pub.)        |         |
  Italy         |BERNE-PARIS      |Life or  |Prefecture   |  None*  |Added
    1882, 1889, |MONTV.*          | 40*     |(3 within    |(res.    |40 yrs. on
    1910        |U. S., Aus.-     |  + 40*  |3 months)*   |trans.)  |royalty of
                |Hung., Mont.,    |         |             |         |5 p. c.
                |Port., Roum.,    |         |             |         |
                |San. Mar.,       |         |             |         |
                |Lat. Amer.       |         |             |         |

{Sidenote: Europe: Minor States}

  San Marino    |_See_ Italy      |         |             |         |As in
  Monaco        |BERLIN           |Life +   |  None       |  None*  | Italy
    1889, 1896  |                 |  50*    |             |         |
  Greece        |    None         | 15 + *  |D (4 within  |         |
    1833-1910   |                 |         |10 days*)    |         |
  Malta, Cyprus,|_See_ Gt. Brit.  |Life + 7 |D (3 within  |         |
    etc. (Br.)  |                 |or 42*   |mo.)         |         |

{Sidenote: Balkan States}

  Montenegro    |Fr., It.         |         |             |         |Uncertain
                |                 |         |             |         |protection
  Bulgaria      |                 |         |             |         |Uncertain
    1896?       |                 |         |             |         |protection
  Servia        |                 |         |             |         |No
                |                 |         |             |         |protection
  Roumania      |Aus., Belg., Fr.,|Life + 10|R. Min. of   |         |
    1862-1904   |It.              |         |Instruc.     |         |
  Turkey        |     None        |Life +   |Min. of Pub. |   None. |
    1910        |                 |  30*    |Instruc. (3)*|         |

{Sidenote: Asia}

  Asia          |                 |         |             |         |
  Japan         |BERLIN*          |Life +   |R. Ministry  |   None* |
    1899, 1910  |U. S.,* China    |  30*    |of Int.      |         |
                |                 |         |(before suit)|         |
  Korea         |_See_ Japan      |         |             |         |As in
    1908        |                 |         |             |         | Japan
  China         |U. S.,* Japan    |Life +   |Ministry of  |         |
    1910        |                 |   30*   |Int. (2)     |         |
  Hong Kong     |_See_ Gt. Brit.  |Life + 7 |D (3 within  |         |
    (Br.)       |                 |or 42*   |mo.)         |         |
  Philippines   |_See_ U. S.      |         |             |         |
    (U. S.)     |                 |         |             |         |
  India, British|_See_ Gt. Brit.  |Life + 7 |D (3         |Printer's|
    1847, 1867  |                 |or 42*   |within mo.)  |and pub- |
                |                 |         |             |lisher's |
                |                 |         |             |name on  |
                |                 |         |             |work     |
  Ceylon, etc.  |_See_ Gt. Brit.  |Life + 7 |D (3 within  |         |
    (Br.)       |                 |or 42*   |mo.) (4      |         |
                |                 |         |within yr.)  |         |
  Siam          |      None       |Life + 7 |             |         |
    1901        |                 |or 42*   |             |         |
  Persia        |      None       |         |             |         |No pro-
                |                 |         |             |         | tection

{Sidenote: Africa}

  Africa        |                 |         |             |         |
  Egypt         |      None       |Indef-   |             |         |Court pro-
                |                 | inite   |             |         | tection
  Tunis         |BERLIN*          |Life +   |             |         |As in
    1889        |                 |  50*    |             |         | France
  Algeria (Fr.) |_See_ France     |         |             |         |
  Sierra Leone, |_See_ Gt. Brit.  |Life + 7 |D (3)*       |         |
   etc (Br.)    |                 |or 42*   |             |         |
    1887        |                 |         |             |         |
  Liberia       |BERLIN           |Indef-   |             |         |Without
                |                 |inite    |             |         |specific
                |                 |         |             |         |law
  Congo Free    |Belg., Fr.       |         |             |         |Punishes
    State       |(extradition)    |         |             |         |fraud only
  So. Africa    |_See_ Gr. Brit.* |         |             |         |
    (Br.)       |Aus.-Hung.,      |         |             |         |
                |excepted         |         |             |         |
    Cape Colony |                 |Life + 5 |Registrar of |         |
     1873-1895  |                 |or 30*   |Deeds        |         |
                |                 |         |D (4 within  |         |
                |                 |         |mo.)*        |         |
    Natal       |                 |Life + 7 |Colonial     |         |
     1895-1898  |                 |or 42*   |Sec., D (2   |         |
                |                 |         |within 3     |         |
                |                 |         |mos.)*       |         |
    Transvaal,  |                 |50 or    |Registrator  | Reserv. |Printing
     etc. 1887  |                 |life*    |D (3 within  |  of     |within
                |                 |         |2 mos.)*     | playr.  |colony*
                |                 |         |             |  and    |
                |                 |         |             | trans.  |

{Sidenote: America, Latin: Mexico Central America}

  Latin America |                 |         |             |         |
  Mexico        |U. S., Dom. Rep.,|Perpetu- |R. Min.      |  None*  |
    1871, 1884  | Ecu., Belg.,    |ity*     |Pub. Instruc.|(res.    |
                |Fr., It., Sp.    |         |D (2)*       |trans.)  |
  Costa Rica    |MEXICO           |Life +   |Office of    |  None   |
    1880-1896   |U. S., Sp., Fr.  |50*      |Pub. Libs.   |         |
                |Guat., Sal., Hon.|         |(3)*         |         |
                |                 |         |within yr.*  |         |
  Guatemala     |MEXICO           |Perpetu- |Min. of Pub. |(res.    |
    1879        |Sp., Fr.,        |ity      |Educ.        |trans.)  |
                |Costa R.         |         |(4)*         |         |
  Honduras      |MEXICO           |Indef-   |             |         |No speci-
    1894, 1898  |Costa R.         | inite   |             |         |fic law
  Nicaragua     |MEXICO           |Perpetu- |Min. of      |(res.    |
    1904        | It.             |ity*     |Agric. (6*)  |trans.)  |
  Salvador      |MEXICO           |Life +   |D Min. of    |  None   |Publi-
    1886, 1900  |Sp., Fr.,        |25*      |Agric.       |         |cation
                |Costa R.         |         |(1 before    |         |within
                |                 |         |pub.)        |         |country
  Panama        |  None           |Life + 80|             |         |As in
    1904        |                 |         |             |         |Colombia

{Sidenote: West Indies}

  Cuba          |MEXICO?          |Life +   |Dept. of     |  None   |
    1879-1909   |U. S., It.       | 80*     |State (3)    |         |
  Haiti         |BERLIN           |Life + * |D Dept. of   |  None   |
    1885        |                 |         |Int., (5     |         |
                |                 |         |within yr.)  |         |
  Dominican Rep.|MEXICO? Mex.     |Uncertain|             |         |
    1896        |                 |         |             |         |

{Sidenote: South America}

  Brazil        |Portugal         |50* from |Nat. Lib. (1 |  None*  |
    1891-1901   |                 |the 1st  |within 2     |(res.    |
                |                 |Jan. of  | yrs.)       |playr.)  |
                |                 |yr. of   |             |         |
                |                 |pub.     |             |         |
  Argentina     |MONTEVIDEO       |Life +   |Nat. Lib.    |  None*  |
    1910        |Belg., Sp., Fr., |10*      |(2 within 15 |         |
                |It.              |         |or 30 days)  |         |
  Uruguay       |MONTEVIDEO       |Indefin- |             |         |No speci-
    1868        |                 |ite      |             |         |fic law
  Paraguay 1870,|MONTEVIDEO Belg.,|         |Public       |         |Under
     1881, 1910 | Sp., Fr., It.   |         |registries   |         |penal code
  Chile         |U. S.            |Life + 5*|D Nat. Pub.  |  None   |
    1833-1874   |                 |         |Lib. (3)*    |         |
  Peru          |MONTEVIDEO       |Life +   |D Pub. Lib.  |  None   |
    1849, 1860  |                 |20*      |(1) + Dept.  |         |
                |                 |         |Pref. (1)    |         |
  Bolivia       |MONTEVIDEO       |Life +   |R Min. of    |         |
    1834, 1909  |Fr.              | 30*     |Pub. Instruc.|         |
                |                 |         |D Pub. Lib.  |         |
                |                 |         |(1 within    |         |
                |                 |         | yr.)        |         |
  Ecuador       |Sp., Fr., Mex.   |Life +   |Min. of      |  None*  |
    1884, 1887  |                 | 50*     |Pub. Educ.   |(res.    |
                |                 |         |(3 within 6  |playr.)  |
                |                 |         |mos.)*       |         |
  Colombia      |Sp., It.         |Life +   |Min. of      |  None   |
    1886, 1890  |                 | 80*     |Pub. Educ.   |         |
                |                 |         |(3 within    |         |
                |                 |         |yr.)*        |         |
  Venezuela     |  None.          |Perpetu- |Registry (6) |Notice of|
    1894, 1897  |                 |ity      |             |patent   |

{Sidenote: Australasia}

  Australasia   |                 |         |             |         |
  Australia     |_See_ Gt. Brit.* |Life + 7 |Commonwealth |Reserv.  |
    (Br.) 1905  |Aus.-Hung.       |or 42*   |Copyr. Office| per-    |
                |excepted         |         |D (2)        | forming |
  New Zealand   |_See_ Gt. Brit.  |28 or    |R Registrar  | right   |
    (Br.)       |                 | life*   |of Coprs.* D |         |
    1842-1903   |                 |         |libr. of Gen.|         |
                |                 |         |Assem. (for  |         |
                |                 |         |plays only)  |         |
  Hawaii (U. S.)|_See_ U. S.      |         |             |         |
  ---------------------------------------------------------------------------



  CONTENTS                                                       Page xv


  PART I

  NATURE AND DEVELOPMENT OF COPYRIGHT

  I. THE NATURE AND ORIGIN OF COPYRIGHT                              1-7

  Copyright meaning, 1--Its two senses, 1--Blackstone,
  2--Property by creation, 3--Property in unpublished works,
  4--The question of publication, 5--Inherent right, 5--Statutory
  penalties, 6--Statute of Anne, 6--Supersedure of common law
  right, 7.

  II. THE EARLY HISTORY OF COPYRIGHT                                8-23

  In classic times, 8--Roman law, 8--Monastic copyists, 8--St.
  Columba and Finnian, 9--University protection, 9--Invention of
  printing, 10--In Germany, 10--In Italy: Venice, 13--Florence,
  17--Control of Church, 17--In France, 17--In England, 19--The
  Stationers' Company, 21--Statutory provisions, 22.

  III. THE DEVELOPMENT OF STATUTORY COPYRIGHT IN ENGLAND           24-34

  The Statute of Anne as foundation, 24--Its relations to common
  law, 24--The crucial case, 25--The Judges' opinions, 25--The
  Lords' decision, 26--Protests, 26--Supplementary legislation,
  26--Georgian period, 27--Legislation under William IV,
  28--Victorian act of 1842, 28--Protection of designs,
  29--Subsequent acts, 29--Royal Commission report of 1878,
  30--Later legislation, 31--International copyright, 31--Musical
  copyright, 31--Conference reports, 1909, 32--Act of 1911,
  32--Design patents, 33--Common law rights, 34.

  IV. THE HISTORY OF COPYRIGHT IN THE UNITED STATES                35-41

  Constitutional provision, 35--Early state legislation, 35--Act
  of 1790, 35--1802-1867, 36--Revised act of 1870, 37--1874-1882,
  37--International copyright legislation, 1891, 37--Private
  copyright acts, 38--American possessions, 38--American code of
  1909, 39--State protection of playright, 39--Trade-Mark act,
  40--Common law relations, 40.


  PART II

  LITERARY AND GENERAL COPYRIGHT

  V. SCOPE OF COPYRIGHT: RIGHTS AND EXTENT                         42-62

  General scope, 42--American provisions, 42--Oral addresses,
  42--Dramas, 42--Music, 43--Previous American law,
  43--Unpublished works, 43--Common law scope, 44--Common law in
  U. S. practice, 44--Statutory limitations, 44--General rights,
  45--Inferential rights, 46--Differentiated rights, 46--Court
  protection, 46--Division of rights, 46--Analysis of property
  rights, 47--Broad interpretation, 48--Limits of protection,
  48--Differentiated contracts, 48--Enforcement in limited
  grants, 49--Copyright as monopoly, 50--Altered theory of
  copyright, 52--Publishing, 52--What constitutes publishing,
  53--"Privately printed" works, 53--Copying, 53--Vending,
  54--Control of sale, 54--Macy cases, 55--Bobbs-Merrill case,
  56--Scribner case, 56--English underselling case, 57--Suits
  under state law, 57--Translating, 58--"Other version,"
  58--Translating term, 58--Oral delivery, 59--"Publicly and for
  profit," 59--Material and immaterial property, 60--Schemes not
  copyrightable, 61--New British code, 61--Foreign statutes,
  62--International provisions, 62.

  VI. SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE COPYRIGHTED         63-94

  Subject-matter in general, 63--Classification, 63--Prints and
  labels excluded, 64--All the writings of an author,
  64--Component parts, 64--Compilations, new editions, etc.,
  64--Non-copyrightable works, 65--Government use, 65--"Author"
  and "writing" definitions, 66--Interpretation by Congress and
  courts, 66--Supreme Court decisions, 67--Originality and merit,
  68--"Book" definitions, 68--Blank books, 72--Combinations and
  arrangements, 73--Advertisements, 73--New editions,
  75--Copyright comprehensive, 76--Non-copyrightable parts
  excepted, 76--Book illustrations, 77--Translations,
  77--Translator's rights, 78--English practice, 79--Translations
  in international relations, 79--Foreign translators,
  79--Abridgments, 80--Compilations, 81--Collections, 81--Titles,
  82--Changed titles, 82--Titles as trade-marks, 83--"Chatterbox"
  cases, 84--Projected titles, 85--Projected works not
  copyrightable, 86--Immoral works, 86--Periodicals,
  87--Definition of periodicals, 87--Periodicals under
  manufacturing clause, 88--Periodicals copyrightable by numbers,
  88--News, 89--British periodicals, 90--Oral works,
  90--Newspaper reports, 91--Lectures in England, 91--Letters,
  91--Designs patentable, 93--Foreign practice, 94--International
  definition, 94.

  VII. OWNERSHIP OF COPYRIGHT: WHO MAY SECURE COPYRIGHT           95-113

  Persons named, 95--The author primarily, 95--Claimant's right
  to register, 96--Employer as author, 97--Implied ownership,
  98--Protection outside of copyright, 98--Work in cyclopædias,
  99--Association of author's name, 100--Added material and
  alteration, 100--Separate registration of contributions,
  100--Anonymous works, 101--Joint authorship, 101--Corporate
  bodies, 102--Posthumous works, 102--Peary cases, 102--Renewal
  rights, 104--Assignments, 104--Assignment record,
  105--Substitution of name, 105--Witnesses, 106--"Outrights" and
  renewal, 106--Proof of proprietorship, 107--Foreign citizens,
  107--Earlier provisions, 108--Residence, 108--Intending
  citizens, 109--Time of first publication, 109--Non-qualified
  authors, 110--Foreign ownership, 111--"Proclaimed" countries,
  111--Buenos Aires convention, 113--New British code,
  113--Foreign practice, 113.

  VIII. DURATION OF COPYRIGHT: TERM AND RENEWAL                  114-124

  Historic precedent, 114--Previous American practice, 114--Term
  in code of 1909, 115--Renewal, 115--Extension of subsisting
  copyrights, 116--Assignee of unpublished manuscripts,
  116--Extension of subsisting renewals, 117--Publishers'
  equities, 117--Estoppel of renewal, 118--Life term and beyond,
  118--Unpublished works, 119--Publication as date of copyright,
  119--Serial publication, 120--Joint authorship,
  120--Forfeiture, 121--Abandonment, 121--In England, 121--New
  British code, 122--Perpetual copyright, 123--Other countries,
  124--International standard term, 124--Special categories, 124.

  IX. FORMALITIES OF COPYRIGHT: PUBLICATION, NOTICE, REGISTRATION
      AND DEPOSIT                                                125-152

  General principles, 125--Previous American requirements,
  125--Present American basis, 126--Provisions of 1909,
  126--Publication, 126--Copyright notice, 127--Previous
  statutory form, 128--Exact phraseology required, 128--Name,
  129--Date, 129--Accidental omission, 130--Place of notice,
  131--One notice sufficient, 131--Separate volumes,
  132--Different dates, 133--Extraterritorial notice,
  133--Successive editions, 134--False copyright notice, 134--_Ad
  interim_ protection, 135--Substitution of name,
  135--Registration, 136--Rules and regulations,
  136--Application, 136--Certificate, 136--Application
  requirements, 137--Illustrations, 138--Periodicals,
  138--Application cards, 139--Certificate cards, 140--Fees,
  141--Deposit, 142--Fragment not depositable, 143--Typewriting
  publication and deposit, 143--Legal provisions, 143--Failure to
  deposit, 144--Forfeiture by false affidavit, 144--Works not
  reproduced, 144--Second registration, 145--Free transportation
  in mail, 145--Loss in mail, 145--Foreign works, 146--_Ad
  interim_ deposit, 146--Completion of _ad interim_ copyright,
  147--Omission of copyright notice, 148--Books only _ad
  interim_, 148--Exact conformity required, 149--Expunging from
  registry, 150--British formalities, 150--New British code,
  151--Other countries, 151--International provisions, 152.

  X. THE AMERICAN MANUFACTURING PROVISIONS                       153-161

  Manufacturing provision of 1891, 153--Text in 1909 code,
  153--Scope and exceptions, 154--Changes, 1891-1909,
  154--German-American instances, 155--Dramas excepted,
  155--Exception of foreign original texts, 156--Exception of
  foreign illustrative subjects, 156--Affidavit requirement,
  156--Avoidance of errors, 157--Forfeiture by false affidavit,
  158--Exact compliance necessary, 158--Importation questions,
  159--Foreign manufacturing provisions, 160--English patent
  proviso, 161.


  PART III

  DRAMATIC, MUSICAL AND ARTISTIC COPYRIGHT

  XI. DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT        162-201

  Dramatists' and composers' rights, 162--American provisions,
  162--Rights assured, 163--Dramatic rights, 163--Musical rights,
  164--Excepted performance, 164--Performance "for profit,"
  165--Works not reproduced, 166--Copyright notice,
  166--Dramatico-musical works protected from mechanical
  reproduction, 166--Dramatic and musical works excepted from
  manufacturing provisions, 167--British colonial practice,
  168--Entry under proper class, 168--Application and
  certificates, 168--Right of dramatization, 169--Dramatization
  term, 169--Musical arrangements, 169--Transposition, 170--Works
  in the public domain, 170--Dramatization right protected,
  170--English law and practice, 171--Infringement cases,
  172--Substantial quotations, 173--Specific scenes or
  situations, 174--What is a dramatic composition, 174--Judge
  Blatchford's opinion, 175--Judicial definitions, 175--Moving
  pictures, 176--Literary merit not requisite, 177--What is a
  dramatico-musical composition, 177--Protection of playright,
  178--Protection of unpublished work, 179--Indeterminate
  protection, 180--Printing and performance, 180--Specific
  English provisions, 182--Publication prior to performance,
  183--British international protection, 184--What is public
  performance, 185--Manuscript rights, 186--Unpublished
  orchestral score, 187--Dramatic work by employee,
  188--Copyright term, 188--Registration, 189--Assignment,
  189--Parody, 190--Infringement by single situation,
  191--Protection of title, 191--Names of characters,
  192--Persons liable for infringement, 193--Protection against
  "fly by night" companies, 194--State legislation, 194--Remedies
  under present law, 195--Musical protection in England,
  195--Acts of 1902-1906, 196--Playright in other countries,
  197--International provisions, 197--Foreign protection of
  arrangements, 197--International definitions, 198--National
  formalities, 199--Specific reservations and conditions,
  200--Pan American Union, 201.

  XII. MECHANICAL MUSIC PROVISIONS                               202-221

  "Canned music" contest, 202--Mechanical music provisos,
  202--Compulsory license, 203--Damages, 203--Public performance,
  204--The compromise result, 204--Judicial construction,
  205--Punishment of infringement, 206--Notice of intention to
  use, 206--Constitutional question, 207--English law, 208--Berne
  situation, 1886, 209--Paris, 1896, 209--Berlin provision, 1908,
  209--German precedents, 210--Law of 1910, 211--Germany and the
  United States, 212--French precedents, 212--Belgian precedents,
  213--Italian precedents, 213--Other countries, 214--Argument
  for inclusion, 214--Inscribed writings, 215--Direct
  sound-writings, 216--Music transmissal, 216--Music notation,
  217--The law prior to 1909, 218--Manuscript and copies,
  218--Protection of the inventor, 219--The counter argument,
  220--Complete protection, 221.

  XIII. ARTISTIC COPYRIGHT                                       222-250

  Threefold value in art works, 222--American provisions,
  223--Copyright Office classification definitions, 223--The
  question of exhibition, 224--Protection of unpublished work,
  225--Copyright notice, 225--Deposit, 226--Summary of
  requirements, 227--Material and immaterial properties distinct,
  228--Manufacturing clause, 228--German post cards,
  229--Artistic merit, unimportant, 229--Application forms,
  229--Certificates, 230--Term in unpublished work, 230--Date not
  required, 230--Re-copyright objectionable, 231--Exhibition
  right transfer, 231--Early English decision, 232--The
  Werckmeister leading case, 233--Unrestricted exhibition
  hazardous, 234--Reservation on sale, 234--Publication
  construed, 234--Danger of forfeiture, 235--Limited use and
  license, 236--Character, not method of use, 237--Illustration,
  237--Description of artistic work, 238--Portraits, 238--Right
  of employer, 239--Photographs, 240--_Tableaux vivants_ and
  moving pictures, 241--Architectural works, 242--Copy of a copy,
  243--Alterations, 243, 244--Remedies, 245--Artistic copyright
  term, 245--British practice, 246--Sculpture provisions,
  247--Engraving provisions, 247--New British code, 247--Foreign
  countries, 248--Berne convention, 1886, 248--Paris declaration,
  1896, 249--Berlin convention, 1908, 250--Exhibition not
  publication, 250--Pan American Union, 250.


  PART IV

  COPYRIGHT PROTECTION AND PROCEDURE

  XIV. INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE" AND "UNFAIR
  COMPETITION"                                                   251-264

  Piracy, 251--Test of piracy, 251--Infringement in specific
  meaning, 252--Questions of fact and intent, 253--"Fair use,"
  253--Principle of infringement, 254--Infringement by indirect
  copying, 254--Exceptions from infringement, 255--Infringement
  by abridgment and compilation, 255--Abridged compilations,
  256--Separation of infringing parts, 256--Law digests,
  257--Proof from common errors, 257--Infringement in part,
  258--No infringement of piracies or frauds, 258--Quotation,
  259--Private use, 259--"Unfair competition," 260--Deceptive
  intent, 260--"Chatterbox" cases, 261--Encyclopædia Britannica
  cases, 261--Webster Dictionary cases, 261--"Old Sleuth" cases,
  262--Other title decisions, 262--Rebound copies, 263--Kipling
  case, 263--Burlesqued title, 264--Drummond case, 264--New
  British code, 264.

  XV. REMEDIES AND PROCEDURE                                     265-277

  Protection and procedure, 265--Injunction, 265--Damages,
  265--One suit sufficing, 266--Deposit of infringing articles,
  266--Remedies specified, 267--Impounding, 268--Supreme court
  rules, 268--Court jurisdiction, 268--Limitation, 269--Text of
  procedure provisions, 270--Proceedings united in one action,
  270--Jurisdiction, 270--Injunction provisions, 270--Appeal,
  271--No criminal proceedings, after three years, 271--Strict
  compliance requisite, 271--Damage not penalty, 272--Other
  procedure decisions, 273--Preventive action, 274--Party in
  suit, 274--Willful case, 275--Penal provisions, 275--False
  notice of copyright, 276--Allowance of costs, 276--New British
  code, 277.

  XVI. IMPORTATION OF COPYRIGHTED WORKS                          278-296

  Copyright and importation, 278--Fundamental right of exclusion,
  278--General prohibitions, 279--Exceptions permitted, 279--Text
  provisions, 280--Prohibition of piratical copies,
  280--Permitted importations, 280--Library importations,
  281--Seizure, 282--Return of importations, 282--Rules against
  unlawful importation, 282--Supersedure of previous provisions,
  283--Manufacturing clause affects earlier copyrights,
  283--Importation of foreign texts, 284--Printing within
  country, 285--Innocent importation, 286--Books not claiming
  copyright, 286--Periodicals, 286--Composite books,
  286--Rebinding abroad, 287--Importation of non-copyright
  translation, 288--Books dutiable, 288--Books on free list,
  289--Library free importation, 290--Copyrights and the free
  list, 291--The duty on books, 291--British prohibition of
  importation, 292--Foreign reprints, 293--Divided market,
  293--New British code, 293--Canadian practice, 294--Australian
  provision, 295--Foreign practice, 295--International practice,
  296.

  XVII. COPYRIGHT OFFICE: METHODS AND PRACTICE                   297-310

  History of Copyright Office, 297--Routine of registration,
  297--Treatment of deposits, 298--Destruction of useless
  material, 299--Register of Copyrights, 299--Catalogues and
  indexes, 300--Entry cards, 301--Text provisions, 302--Copyright
  records, 302--Register and assistant register, 302--Deposit and
  report of fees, 302--Bond, 303--Annual report, 303--Seal,
  303--Rules, 303--Record books, 303--Certificate, 303--Receipt
  for deposits, 304--Catalogue and index provision,
  304--Distribution and subscriptions, 305--Records open to
  inspection, 305--Preservation of deposits, 305--Disposal of
  deposits, 306--Fees, 307--Only one registration required,
  307--Present organization, 308--Efficiency of methods,
  308--Registration, 1909-1910, 309--Certificates for court use,
  309--Searches, 309--Patent Office registry for labels,
  309--Foreign practice, 310.


  PART V

  INTERNATIONAL AND FOREIGN COPYRIGHT

  XVIII. INTERNATIONAL COPYRIGHT CONVENTIONS AND ARRANGEMENTS    311-340

  International protection of property, 311--Early copyright
  protection, 311--English protection, 311--Effect of Berne
  convention, 313--International literary congresses,
  314--Fundamental proposition, 314--Preliminary official
  conference, 1883, 314--Propositions of 1883, 315--First
  official conference, 1884, 316--Second official conference,
  1885, 317--Third official conference, 1886, 318--Berne
  convention, 1886, 318--Authors and terms, 318--"Literary and
  artistic works" defined, 318--Performing rights, 319--Other
  provisions, 319--Final protocol, 320--Ratification in 1887,
  320--Paris conference, 1896, 321--Paris Additional Act,
  321--Paris Interpretative Declaration, 322--Ratification in
  1897, 322--Berlin conference, 1908, 323--United States'
  position, 324--Welcome of non-unionist countries, 325--Death of
  Sir Henry Bergne, 325--Berlin convention, 1908, 326--"Literary
  and artistic works" defined, 326--Authors' rights,
  326--"Country of origin," 327--Broadened international
  protection, 327--Term, 328--Performing rights, 328--Other
  provisions, 329--National powers reserved, 329--Organization
  provisions, 329--Ratification in 1910, 330--Official organ,
  330--Montevideo congress, 1889, 331--Pan American conferences,
  331--Mexico City conference, 1902, 332--Mexico convention,
  1902, 332--Indispensable condition, 333--Special provisions,
  333--Ratification, 334--Rio de Janeiro conference, 1906,
  334--Rio provisions, 335--Ratification, 336--Buenos Aires
  conference and convention, 1910, 336--Attorney General's
  opinion on ratification, 337--Relation with importation
  provisions, 338--United States international relations,
  339--"Proclaimed" countries, 339--Mechanical music reciprocity,
  340.

  XIX. THE INTERNATIONAL COPYRIGHT MOVEMENT IN AMERICA           341-372

  Initial endeavor in America, 1837, 341--The British address,
  341--Henry Clay report, 1837, 344--Prophecy of world union,
  344--Clay bills, 1837-42, 346--Palmerston invitation, 1838,
  346--Efforts, 1840-48, 346--Everett treaty, 1853, 347--Morris
  bills, 1858-60, 348--International Copyright Association, 1868,
  348--Baldwin bill and report, 1868, 348--Clarendon treaty,
  1870, 349--Cox bill and resolution, 1871, 349--The Appleton
  proposal, 1872, 350--Philadelphia protest, 1872, 351--The
  Bristed proposal, 1872, 351--Kelley resolution, 1872,
  352--Congressional hearings, 352--Beck-Sherman bill, 1872,
  352--Morrill report, 1873, 353--Banning Bill, 1874, 353--The
  Harper proposal and draft, 1878, 353--Granville negotiations,
  1880, 355--Robinson and Collins bills, 1882-83, 356--American
  Copyright League, 356--Dorsheimer bill, 1884, 356--American
  publishers' sentiment, 357--Hawley bill, 1885, 358--Chace bill,
  1886, 358--Congressional hearings, 1886, 359--Mr. Lowell's
  epigram, 359--President Cleveland's second message, 1886,
  360--Campaign of 1887, 360--Senate passage of Chace bill, 1888,
  361,--Bryce bill, 1888, 361--President Harrison's message,
  1889, 361--Simonds bill and report, 1890, 362--Senate debate,
  1891, 363--Act of March 4, 1891, 363--Review of the publishing
  situation, 364--Lack of unified policy, 365--Compromise of
  1891, 365--Need of general revision, 366--_Ad interim_
  copyright act, 1905, 366--Copyright conferences, 1905-06,
  367--President Roosevelt's message, 1905, 368--Congressional
  hearings, 1906-08, 369--Kittredge-Currier reports, 1907,
  369--Smoot-Currier Kittredge-Barchfeld bills, 1907-08,
  370--Washburn, Sulzer, McCall, Currier bills, 1908, 370--Fourth
  Congressional hearing, 1909, 371--Act of March 4, 1909,
  371--Hopes of future progress, 372.

  XX. COPYRIGHT THROUGHOUT THE BRITISH EMPIRE                    373-397

  English and American systems, 373--First publication and
  residence, 373--Variations in copyright terms, 374--New British
  code, 374--Scope and extent, 375--Publication, 376--Definition
  of copyright, 376--Infringement, 376--Term, 377--Ownership,
  377--Deposit copies, 378--Importation, 378--Remedies,
  378--General relations, 379--Acts repealed, 379--Changes from
  original bill, 379--Isle of Man, 380--Channel Islands,
  381--International relations, 381--Colonial relations,
  381--Local legislation, 382--Canadian copyright history,
  383--Dominion of Canada: early acts, 383--Acts of 1875,
  384--License acts disallowed, 385--Fisher Act, 1900, 385--Minor
  acts, 386--Short form of notice, 386--Proposed Canadian
  copyright code, 1911, 386--Imperial and Canadian copyright,
  388--Requisites for domestic copyright, 388--Imperial and local
  protection, 388--Additional local protection, 389--Application
  for copyright, 389--Newfoundland, 390--British West Indies,
  etc., 391--Australian code of 1905, 391--General provisions,
  392--Dramatic and musical works, 393--Performing right,
  393--Registration and license, 394--New Zealand,
  394--Australasia otherwise, 395--British India, 395--South
  Africa, 396--West coast colonies, 397--Mediterranean islands,
  397.

  XXI. COPYRIGHT IN OTHER COUNTRIES                              398-429

  France, 398--Belgium, 400--Luxemburg, 400--Holland,
  401--Germany, 402--Austria-Hungary, 405--Switzerland,
  406--Scandinavian countries, 407--Russia, 409--Finland,
  409--Spain, 410--Portugal, 411--Italy, 412--San Marino,
  413--Monaco, 413--Greece, 414--Montenegro, 414--Balkan states,
  414--Turkey, 415--Japan, 415--Korea, 416--China, 417--Siam,
  417--Asia otherwise, 418--Tunis, etc., 418--Egypt,
  418--Liberia, 419--Africa otherwise, 419--Latin America,
  419--Mexico, 420--Central American states, 421--Interstate and
  international relations, 422--Panama, 423--Cuba, 423--Haiti,
  424--Dominican Republic, 424--West Indian colonies,
  425--Brazil, 425--Argentina, 425--Paraguay and Uruguay,
  426--Chile, 427--Peru, 427--Bolivia, 427--Ecuador,
  428--Colombia, 429--Venezuela, 429.


  PART VI

  BUSINESS RELATIONS AND LITERATURE

  XXII. BUSINESS RELATIONS OF COPYRIGHT: AUTHOR AND PUBLISHER    430-452

  Copyrights in business relations, 430--German publishing law of
  1901, 430--The publisher as merchant, 434--"Outright" transfer,
  434--"Joint adventure," 435--Risk and profit, 435--Long price
  and "net" price, 436--Equities, 436--The literary agent,
  436--Usual American contract, 437--Publishers' obligations,
  437--Reversion of contract, 438--Scope of contract, 438--Other
  works of author, 439--Standard contract, 439--Serial rights,
  439--Republication of periodical articles, 440--Foreign
  markets, 440--Contract to do work, 440--Contract not to write,
  441--Implied obligations, 442--Contract personal and mutual,
  442--Author's transfer to other publishers, 445--Proprietary
  name, 445--Copies remaining unsold, 446--Renewal term,
  447--License not assignment, 447--Author's and publisher's
  profits, 447--The publisher's share, 448--"Author's editions,"
  449--Printer's lien, 449--Compulsory license system,
  449--License payments, 450--Saving through single publisher,
  451--Copyrights in bankruptcy, 451--Copyrights in taxation,
  452.

  XXIII. THE LITERATURE OF COPYRIGHT                             453-462

  Bibliographical materials, 453--Early history, 453--Early
  American contributions, 454--Later American pamphleteers,
  454--American treatises, 455--Copyright Office publications,
  455--Labor report, 456--English contributions about 1840,
  456--Later English contributions, 457--English legal treatises,
  457--Birrell's lectures, 458--MacGillivray's works,
  458--English special treatises, 459--Parliamentary and
  Commission reports, 459--Cyclopædias and digests, 460--French
  works, 460--German works, 460--Italian works, 461--Spanish
  compendium, 461--International compilations, 462.


                        APPENDIX

  I. UNITED STATES OF AMERICA: COPYRIGHT PROVISIONS              465-516
    1. United States Copyright Code of 1909, 465.
    2. President's Proclamations, 489.
    3. United States Supreme Court Rules, 491.
    4. United States Copyright Office Regulations, 495.
       Application for copyright, with affidavit form, 511.
    5. U. S. Treasury and Post Office Regulations, 513.

  II. BRITISH EMPIRE: COPYRIGHT PROVISIONS                       517-602
    6. British Copyright Act, 1911, 517.
    6_a_. Fine Arts Copyright Act, 1862, 548.
    6_b_. Musical (Summary Proceedings) Copyright Act, 1902, 550.
    6_c_. Musical Copyright Act, 1906, 552.
    7. Canadian Copyright Measure, 1911, 555.
    8. Australian Copyright Act, 1905, 580.

  III. INTERNATIONAL COPYRIGHT UNION: CONVENTIONS                603-632
    9. Berne-Paris Conventions, 1886, 1896, 603.
   10. Berlin Convention, 1908, 603.

  IV. PAN AMERICAN UNION: CONVENTIONS                            633-652
   11. Montevideo Convention, 1889, 633.
   12. Mexico City Convention, 1902, 637.
   13. Rio de Janeiro Convention, 1906, 642.
   14. Buenos Aires Convention, 1910, 649.

  CHRONOLOGICAL TABLE OF LAWS AND CASES, ENGLISH AND AMERICAN    653-675

  INDEX                                                          677-709

  CONSPECTUS OF COPYRIGHT BY COUNTRIES               _precedes_ CONTENTS



                  COPYRIGHT

           ITS HISTORY AND ITS LAW



I

THE NATURE AND ORIGIN OF COPYRIGHT


{Sidenote: Copyright, meaning}

Copyright (from the Latin _copia_, plenty) means, in general, the right
to copy, to make plenty. In its specific application it means the right
to multiply copies of those products of the human brain known as
literature and art.

There is another legal sense of the word "copyright" much emphasized by
several English justices. Through the low Latin use of the word _copia_,
our word "copy" has a secondary and reversed meaning, as the pattern to
be copied or made plenty, in which sense the schoolboy copies from the
"copy" set in his copy-book, and the modern printer calls for the
author's "copy."

{Sidenote: Its two senses}

Copyright, accordingly, may also mean the right in copy made (whether
the original work or a duplication of it), as well as the right to make
copies, which by no means goes with the work or any duplicate of it.
Said Lord St. Leonards in the case of Jefferys v. Boosey in 1854: "When
we are talking of the right of an author we must distinguish between the
mere right to his manuscript, and to any copy which he may choose to
make of it, as his property, just like any other personal chattel, and
the right to multiply copies to the exclusion of every other person.
Nothing can be more distinct than these two things. The common law does
give a man who has composed a work a right to that composition, just as
he has a right to any other part of his personal property; but the
question of the right of excluding all the world from copying, and of
himself claiming the exclusive right of forever copying his own
composition after he has published it to the world, is a totally
different thing." Baron Parke, in the same case, pointed out expressly
these two different legal senses of the word copyright, the right _in_
copy, a right of possession, always fully protected by the common law,
and the right _to_ copy, a right of multiplication, which alone has been
the subject of special statutory protection.

{Sidenote: Blackstone}

Blackstone in his Commentaries of 1767, in which the word copyright
seems to have been first used, lays down the fundamental principles of
copyright as follows: "When a man, by the exertion of his rational
powers, has produced an original work, he seems to have clearly a right
to dispose of that identical work as he pleases, and any attempt to vary
the disposition he has made of it appears to be an invasion of that
right. Now the identity of a literary composition consists entirely in
the sentiment and the language; the same conceptions, clothed in the
same words, must necessarily be the same composition; and whatever
method be taken of exhibiting that composition to the ear or the eye of
another, by recital, by writing, or by printing, in any number of
copies, or at any period of time, it is always the identical work of the
author which is so exhibited; and no other man (it hath been thought)
can have a right to exhibit it, especially for profit, without the
author's consent. This consent may, perhaps, be tacitly given to all
mankind, when an author suffers his work to be published by another
hand, without any claim or reserve of right, and without stamping on it
any marks of ownership; it being then a present to the public, like
building a church or bridge, or laying out a new highway."

{Sidenote: Property by creation}

There is nothing which may more rightfully be called property than the
creation of the individual brain. For property (from the Latin
_proprius_, own) means a man's very _own_, and there is nothing more his
own than the thought, created, made out of no material thing (unless the
nerve-food which the brain consumes in the act of thinking be so
counted), which uses material things only for its record or
manifestation. The best proof of _own_-ership is that if this individual
man or woman had not thought this individual thought, realized in
writing or in music or in marble, it would not exist. Or if the
individual thinking it had put it aside without such record, it would
not, in any practical sense, exist. We cannot know what "might have
beens" of untold value have been lost to the world where thinkers, such
as inventors, have had no inducement or opportunity thus to materialize
their thoughts.

{Sidenote: Are thoughts created?}

It is sometimes said, as a bar to this idea of property, that no thought
is new--that every thinker is dependent upon the gifts of nature and the
thoughts of other thinkers before him, as every tiller of the soil is
dependent upon the land as given by nature and improved by the men who
have toiled and tilled before him,--a view of which Henry C. Carey has
been the chief exponent in this country. But there is no real
analogy--aside from the question whether the denial of individual
property in land would not be setting back the hands of progress. If
Farmer Jones does not raise potatoes from a piece of land, Farmer Smith
can; but Shakespeare cannot write "Paradise lost" nor Milton "Much ado,"
though before both Dante dreamed and Boccaccio told his tales. It was
because of Milton and Shakespeare writing, not because of Dante and
Boccaccio who had written, that these immortal works are treasures of
the English tongue. It was the very self of each, _in propria persona_,
that gave these form and worth, though they used words that had come
down from generations as the common heritage of English-speaking men.
Property in a stream of water, as has been pointed out, is not in the
atoms of the water but in the flow of the stream.

{Sidenote: Property in unpublished works}

Property right in unpublished works has never been effectively
questioned--a fact which in itself confirms the view that intellectual
property is a natural inherent right. The author has "supreme control"
over an unpublished work, and his manuscript cannot be utilized by
creditors as assets without his consent. "If he lends a copy to
another," says Baron Parke, "his right is not gone; if he sends it to
another under an implied undertaking that he is not to part with it or
publish it, he has a right to enforce that undertaking." The receiver of
a letter, to whom the paper containing the writing has undoubtedly been
given, has no right to publish or otherwise use the letter without the
writer's consent. The theory that by permitting copies to be made, an
author dedicates his writing to the public, as an owner of land
dedicates a road to the public by permitting public use of it for
twenty-one years, overlooks the fact that in so doing the author only
conveys to each holder of his book the right to individual use, and not
the right to multiply copies, as though the landowner should not give
but sell permission to individuals to pass over his road, without any
permission to them to sell tickets for the same privilege to other
people. The owner of a right does not forfeit a right by selling a
privilege.

{Sidenote: The question of publication}

It is at the moment of publication that the undisputed possessory right
passes over into the much disputed right to multiply copies, and that
the vexed question of the true theory of copyright property arises. The
broad view of literary property holds that the one kind of copyright is
involved in the other. The right to have is the right to use. An author
cannot use--that is, get beneficial results from--his work, without
offering copies for sale. He would be otherwise like the owner of a loaf
of bread who was told that the bread was his until he wanted to eat it.
That sale would seem to contain "an implied undertaking" that the buyer
has liberty to use his copy, but not to multiply it. Peculiarly in this
kind of property the right of ownership consists in the right to prevent
use of one's property by others without the owner's consent. The right
of exclusion seems to be indeed a part of ownership. In the case of land
the owner is entitled to prevent trespass, to the extent of a shot-gun,
and in the same way the law recognizes the right to use violence, even
to the extreme, in preventing others from possession of one's own
property of any kind. The owner of a literary property has, however, no
physical means of defence or redress; the very act of publication by
which he gets a market for his productions opens him to the danger of
wider multiplication and publication without his consent. There is,
therefore, no kind of property which is so dependent on the help of the
law for the protection of the real owner.

{Sidenote: Inherent right}

The inherent right of authors is a right at what is called common
law--that is, natural or customary law. The common law, says Kent,
"includes those principles, usages, and rules of action applicable to
the government and security of person and property which do not rest for
their authority upon any express and positive declaration of the will of
the legislature." "The common law or _lex non scripta_," says
Blackstone, "depends upon its having been used time out of mind; or, in
the solemnity of our legal phrase, time whereof the memory of man
runneth not to the contrary." So far as concerns the undisputed rights
before publication, the copyright laws are auxiliary merely to common
law. Rights exist before remedies; remedies are merely invented to
enforce rights. "The seeking for the law of the right of property in the
law of procedure relating to the remedies," says Copinger in his
standard English work on "The law of copyright," "is a mistake similar
to supposing that the mark on the ear of an animal is the cause, instead
of the consequence, of property therein."

{Sidenote: Statutory penalties}

After the invention of printing it became evident that new methods of
procedure must be devised to enforce common law rights. Copyright
became, therefore, the subject of statute law, by the passage of laws
imposing penalties for a theft which, without such laws, could not be
punished.

{Sidenote: Statute of Anne}

{Sidenote: Supersedure of common law right}

These laws, covering naturally only the country of the author, and
specifying a time during which the penalties could be enforced, and
providing means of registration by which authors could register their
property rights, as the title to a house is registered when it is sold,
had an unexpected result. The statute of Anne, which is the foundation
of present English copyright law, intended to protect authors' rights by
providing penalties against their violation, had the effect of limiting
those rights. It was doubtless the intention of those who framed the
statute of Anne to establish, for the benefit of authors, specific means
of redress. Overlooking apparently the fact that law and equity, as their
principles were then established, enabled authors to use the same means of
redress, so far as they held good, which persons suffering wrongs as to
other property had, the law was so drawn that in 1774 the English House of
Lords (against, however, the weight of one half of English judicial
opinion) decided that, instead of giving additional sanction to a formerly
existing right, the statute of Anne had substituted a new and lesser right
to the exclusion of what the majority of English judges held to have been
an old and greater right. Literary and like property to this extent lost
the character of copy-_right_, and became the subject of copy-_privilege_,
depending on legal enactment for the security of the private owner.
American courts, wont to follow English precedent, have rather taken for
granted this view of the law of literary property, and our Constitution,
in authorizing Congress to secure "for limited times to authors and
inventors the exclusive right to their respective writings and
discoveries," was evidently drawn from the same point of view, though it
does not in itself deny or withdraw the natural rights of the author at
common law.



II

THE EARLY HISTORY OF COPYRIGHT


{Sidenote: In classic times}

Our traditions of the blind Homer, singing his Iliad in the
multitudinous places of his protean nativity, do not vouchsafe us any
information as to the _status_ of authors in his day. There seems indeed
to be no indication of author's rights or literary property in Greek or
earlier literatures. But there is mention in Roman literature of the
sale of playright by the dramatic authors, as Terence; and Rome had
booksellers who sold copies of poems written out by slaves, and who seem
to have been protected by some kind of "courtesy of the trade," since
Martial names certain booksellers who had specific poems of his for
sale. Horace complains that the Sosius brothers, his publishers, got
gold while he got only fame--but this may have been a classic "author's
grumble." Cicero in his letters indicates that there was some notion of
literary property, and it is probable that some kind of payment was made
to authors.

{Sidenote: Roman law}

The Roman jurist Gaius, probably of the second century, held that where
an artist had painted upon a _tabula_, his was the superior right. And
this opinion was adopted by Tribonian, chief editor of the code of
Justinian, in the sixth century, and was applied in a modern question in
respect to John Leech's drawings upon wood.

{Sidenote: Monastic copyists}

{Sidenote: St. Columba and Finnian}

In the early Christian centuries, the monasteries became the seats of
learning, and the _scriptorium_ or writing room, in connection with the
_librarium_ or _armarium_,--the armory in which the weapons of the faith
were kept,--was the work-shop of the monkish copyists, sometimes working
as a publishing staff under the direction of the _librarius_ or
_armarius_ as chief scribe. The first record of a copyright case is that
of Finnian _v_. Columba in 567, chronicled by Adamnan fifty years later
and cited by Montalembert in "The monks of the West." St. Columba, in
his pre-saintly days, surreptitiously made a copy of a psalter in
possession of his teacher Finnian, and the copy was reclaimed, so the
tradition relates, under the decision of King Dermott, in the Halls of
Tara: "To every cow her calf." The authenticity of the tradition is
questioned by other writers, but the phrase gives the pith of the common
law doctrine of literary property and indicates that in those early
centuries there was a sense of copyright. Monks from other monasteries
came to a noted _scriptorium_ where a specially authentic or valuable
manuscript could be copied, and the privilege of copying sometimes
became the basis of an exchange of copies or of a commercial charge.
Finally different texts of the same work were compared to obtain a
certain or standard text, and the multiplication of such copies became
the basis of a publishing and bookselling trade, in secular as well as
sacerdotal hands, the development of which is traced in detail by George
Haven Putnam in "Books and their makers in the Middle Ages."

{Sidenote: University protection}

This development is illustrated in the statutes of 1223 of the
University of Paris, providing that the "booksellers of the University"
should produce duplicate copies of the texts authorized for the use of
the University, and there is indication that payment was made by the
University to scholars for the annotation and proof-reading of such
texts. In fact, there existed in France in those days a kind of guild of
_libraires jurés_ or legalized booksellers, under regulation of the
University, as a body of publishers and writers having jurisdiction over
the copying and censorship of manuscripts. "Letters of patent" of
Charles V, 1368, specified fourteen _libraires_ and eleven _écrivains_
as registered in Paris, and four chief _libraires_ had jurisdiction over
the calling of the _librarius_ and the _stationarius_. The certificate
of the correctness of a copy, and perhaps of the right to copy or sell
it, may be considered the primitive form of copyright certificate.

{Sidenote: Invention of printing}

The invention of printing, prior to 1450, made protection of literary
property a question of rapidly increasing importance. The new art
raised, of course, many new questions wherever the guardians of the law
were set to their chronic task of applying old ideas of right to new
conditions. The earliest copyright certificate, if it may be so called,
in a printed book was that in the reissue of the tractate of Peter
Nigrus printed in 1475, at Esslingen, in which the Bishop of Ratisbon
certified the correctness of the copy and his approval. At first
"privileges" were granted chiefly to printers, for the reproduction of
classic or patristic works, but possibly in some cases as the
representatives of living writers; and there are early instances of
direct grants to authors, the earliest known being in 1486 in Venice to
Sabellico.

{Sidenote: In Germany}

In Germany, the cradle of the art of printing, whence come the earliest
_incunabula_ or cradle-books, printing privileges were developed some
decades later than in Italy. Koberger, the early Nuremberg printer,
whose imprint dates back to 1473, relied rather on the "courtesy of the
trade," and indeed made an agreement in 1495 with Kessler of Basel to
respect each other's rights. Yet a suit brought in 1480 by Schöffer, who
with Fust had established the first publishing and bookselling business,
brought in connection with Fust's heirs against Inkus of Frankfort for
the infringement of property rights in certain books, and the issue of a
preliminary injunction by a court at Basel, indicated some definite
legal _status_.

The first recorded privilege in Germany was issued by the imperial Aulic
Council in 1501, to the Rhenish Celtic Sodalitas for the printing of
dramas of the nun-poet, Hroswitha, who had been dead for 600 years, as
prepared by Celtes of Nuremberg. The imperial privilege covered only the
imperial domain, and Celtes in the same year obtained a similar
privilege from the magistracy of Frankfort, then the seat of the
book-fair, organized there about 1500, afterwards superseded by that at
Leipzig. Later, imperial privileges were issued by the Imperial
Chancellor in the name of the Emperor, as one in 1510 to the printer
Johann Schott of the "_Lectura aurea_." In 1512 Maximilian I granted to
the historiographer Johann Stab in Lintz a privilege covering "all
works" which he "might cause to be printed," under which he issued
licenses on particular books for ten years or less. This grant, however,
some authorities consider not a privilege or copyright, but an
authorization to license, possibly similar to that which had been
granted in 1455 by Frederick III and confirmed later by Maximilian I to
Dr. Jacob Össler at Strasburg, perhaps the earliest centre of printing
and bookselling, as imperial supervisor of literature and superintendent
of printing. In 1512 also, copies or imitations or engravings by Albert
Dürer, with forged signature, were ordered confiscated by the
magistrates of Nuremberg, though perhaps on grounds of fraud rather than
of copyright. But in 1528 Dürer's widow obtained from the Nuremberg
authorities exclusive privilege for his works, and in that year the
magistrates went so far in protecting Dürer's "Proportion" as to
restrain another work of the same title and subject, presumably though
mistakenly inferred to be an adaptation or imitation, until after the
completion and sale of the original work. In 1532 reëngravings of some
of Dürer's works were restrained, and when a Latin edition of his
"Perspective," printed in Paris, found its way to Nuremberg, the
magistrates called the booksellers together, warned them against keeping
or selling the unauthorized edition, and sent letters to the magistracy
of Strasburg, Frankfort, Leipzig and Antwerp, requesting similar action.
Luther in his reforming zeal was the first protestant against authors'
wrongs, and in a letter of 1528 complained that "there are many now
busying themselves with the spoiling of books through misprinting them,"
and pleaded for legislation to protect literary producers. In 1531 the
city council of Basel enjoined all booksellers from reprinting the books
of each other for three years from publication under penalty of one
hundred gulden, which illustrates the nature of local legislation,
privileging printers as well as other guilds within a city. The
protection was usually for short terms and sometimes covered the subject
as well as the book, as indicated in the Dürer case.

The coördinate jurisdiction of imperial and local authority continued
into the seventeenth century, and besides a special protection of
official publications, including church texts and school books, there
developed a differentiation between privileged books and protected
authors. The imperial city of Frankfort in 1660 passed an ordinance for
the protection of "_bücher_" and "_autores_" and an imperial patent of
1685 made the curious distinction between "privileged" and
"unprivileged" works, which Pütter, reputed the German apostle of the
modern theory of property in literary productions, writing in 1764,
explains as meaning respectively "non-individual" and "individual"
(_eigenthümlich_) works, the former those issued under printers'
privileges, the latter the works of contemporary authors, copyrightable
in our modern sense. At the close of the seventeenth century, the
book-fair at Leipzig began to assume dominating importance, and the
privileges from the Commission of the Elector of Saxony became more
authoritative, perhaps, than the imperial privileges issued from
Frankfort.

{Sidenote: In Italy: Venice}

Venice, among whose chief glories were to be the master printers Aldus,
was the first and foremost of the Italian states to encourage the new
art. The first privilege granted by her Senate, in 1469, indeed
ante-dated the first in Germany by thirty-two years, the first in France
by thirty-four years, and the first in England by forty-nine years. This
was to John of Speyer, a German printer, for a monopoly for printing in
Venice for five years, with prohibition of importation of works printed
elsewhere, which he did not live to enjoy. The first known author's
copyright was granted September 1, 1486, to Antonio Sabellico, historian
to the Republic, of the sole right to publish or authorize the
publication of his "Decade of Venetian affairs," not limited in time,
with a penalty of five hundred ducats for infringement. In 1491 the
Senate gave to the publicist Peter of Ravenna and the publisher of his
choice the sole right, without mention of term, to print and sell his
"Phoenix," usually cited as the first instance of copyright. In 1493 one
Barbaro was granted a privilege for ten years in the work of his
deceased brother, and in the same year an editor's copyright was granted
to Joannes Nigro for his edition of "Haliabas," his application being
accompanied by a certificate from learned doctors of Padua of its value
for the community, and a publisher's copyright to Benaliis on
Giustiniani's "Origin of the city of Venice," both apparently without
term. In 1494 a privilege to Codeca contained the condition of fair
price, and another privilege required publication within a year or at
the rate of a folio a day. In 1496 Aldus himself was given the privilege
for twenty years of printing any Greek texts, and in 1501, another for
ten years of printing in cursive or italic characters, an invention of
his own modeled on the handwriting of Boccaccio, a _quasi_ patent right;
and rights for other languages were granted to other printers.

From 1505 renewals were granted for good cause, as in 1508 to Crasso for
his edition of the works of Polifilo, because the wars had prevented due
return. The privilege dated sometimes from application, sometimes from
publication, and varied in term from one year up, averaging perhaps ten
years at the beginning and twenty years toward the close of the
sixteenth century. Many of the privileges were conditioned on printing
within Venice. Copyright to authors became frequent, as in 1515 on his
"Orlando" for his lifetime, to Ariosto, on whose poems an extra term for
ten years was granted, in 1535, to his heirs. In 1521 Castellazzo
obtained a copyright for his engravings illustrating the Pentateuch and
for others which he had in plan; and many musical works were also
copyrighted.

It will be seen that before or early in the sixteenth century most of
the copyright conditions of later legislation, even in the American code
of 1909, had been prophesied in Venice. But the privileges had become so
complicated and perplexing that in 1517 the Venetian Senate abolished
all printing privileges previously granted and decreed that privileges
should thereafter be granted only by two-thirds vote and for a new work
(_opus novum_) "never published before," or works hitherto unprivileged.
This attempt at reform proved inadequate and indefinite, and in 1533 the
first real copyright code was decreed, under which printing was required
within Venice, and publication within a year--later modified for larger
works to a folio a day. No publisher could apply twice for the same
copyright, and a maximum price was fixed from an advance copy by the
Bureau of Arts and Industries. Under the restriction of competition,
Venetian printers, once the best in the world, fell into "the ruinous
and disgraceful practice," according to a decree of 1537, "for the sake
of gain" of using "vile paper that would not hold the ink" or permit
marginal notes; and the use of good paper that could be written upon
without blotting was required, except for works priced under 10 soldi,
on penalty of forfeiture of copyright and a fine of 100 ducats. Under
the earlier privileges publishers had printed books without consent of
the authors or against their will, but in 1545 it was decreed that no
copyright should issue unless documentary evidence of the consent of the
author or his representatives had been submitted to the Rifformatori,
the commission from the University of Padua, appointed the year before
as censors upon non-theological works, not covered by the ecclesiastical
censors.

A decree in 1548 established a guild of printers and publishers,
antedating the charter granted by Queen Mary to the Stationers' Company
in London, though later than the organization of the book-fair of
Frankfort and of the _libraires jurés_ in France; and its regulations,
aiding the censorship, incidentally defined literary property and
protected copyrights.

About 1566 there was a provision that works should be registered before
publication without charge, and a complete registry of published works
was kept in Venice. In 1569 as many as 117 copyright entries were made
in Venice, and so few, after the plague years, as seven in 1599. Only
two applications are recorded as refused by the Senate. The one recorded
instance of punishment for piracy was that on the work of Pappa Alesio
of Corfu, wherein the infringer was fined 200 ducats, besides ten ducats
for each unauthorized copy printed, and was forbidden to print for ten
years.

About 1600 the exodus of printers from Venice was checked by
legislation, and in 1603 an elaborate decree provided copyright for
twenty years on books first published in Venice, for ten years on books
first published in Italy but registered in Venice, or on books not
printed in Venice within the previous twenty years, and for five years
on books not printed within ten years previous, and also a fine of
twenty-five ducats for the false use of "Venetia" in the imprint. Later,
as is evidenced by complaints in 1671, deposit copies were required for
the libraries of St. Mark and of Padua. By the close of the seventeenth
century the provisions for copyright in Venice had become so
complicated, according to Putnam, following Brown's historical study of
"The Venetian printing press," as to require the following processes,
most of them involving a fee: "_testamur_ from the ducal secretary;
certificate from the Rifformatori of the University of Padua;
_imprimatur_ from the Chiefs of the Ten; revision by the Superintendent
of the Press; revision by the public proof-reader; collation of the
original text with the text as printed, by the secretary to the
Rifformatori; certificate from the librarian of St. Mark that a copy had
been deposited in the library; examination by experts appointed by the
Proveditori to establish the market price of the book."

{Sidenote: Florence}

Florence was second only to Venice in the production of books and the
protection of authors, and the records of Florentine printing show that
in the sixteenth century international privileges were sought and
obtained. Thus the printer of a Florentine edition of the Pandects, in
1553, obtained privileges also in Spain, France and the two Sicilies,
possibly through a Papal grant.

{Sidenote: Control by the Church}

By 1515, under Leo X, patron of art and letters, the Holy See had
asserted its jurisdiction over copyrights and privileges, not only in
its own territory, but throughout Italy and Germany, and elsewhere,
under pain of spiritual punishments. Fra Felice of Prato, a converted
Jew, had obtained from the Pope a privilege for certain Hebrew works
valid throughout all Europe, the denial or infringement of which was
punishable by excommunication; but he took the precaution to obtain a
privilege also from the Venetian authorities. There is other evidence of
a compromise policy involving approval from the Church before a secular
privilege was granted, especially of theological works. Throughout
Catholic countries the _index expurgatorius_ banned for the most part
the printing of forbidden books; and this made Holland later the chief
centre of printing, since the placing of a work in the _index_ invited
prompt reprint by Dutch publishers. It was perhaps a survival of a
requirement for deposit of such books that Holland so long remained the
only nation in Europe conditioning copyright on deposit of a copy
printed within the country.

{Sidenote: In France}

In France, after the invention of printing, the functions of the
_libraires jurés_, under the authority given by the King through the
University of Paris, naturally came to include books, and this relation
was continued until the Revolution of 1789. Copyrights throughout this
period seem to have been in perpetuity. At the beginning of the
fifteenth century, in the times of Louis XII, "letters of the King"
forbade booksellers, printers and other persons to "introduce foreign
impressions" of the books to which such letters were appended. They were
usually issued to printers. In 1537, under Francis I, a work had first
to secure "the King's approval given through the royal librarian," a
copy must be deposited in the library of the royal château of Blois, and
the selling of foreign works was permitted only after approval as worthy
of a place in the royal library,--but for these last the library was to
pay the usual price. In 1556 a general ordinance of Henry II defined
literary property, and publication of condemned books was declared
treason. In 1566 the "Ordinance de Moulins" of Charles IX made further
definition; and letters patent of Henry III, in 1576, referred back to
these earlier ordinances. Infringement of such privileges was punished
with especial severity in France, for, as quoted by Lowndes, such
conduct was thought "worse than to enter a neighbor's house and steal
his goods: for negligence might be imputed to him for permitting the
thief to enter: but in the case of piracy of copyright, it was stealing
a thing confided to the public honor." Louis XIV in 1682 visited it with
corporal punishment, and for a second offence decreed in 1686 also that
the offender should be forever disabled from exercising his trade of
bookseller or printer.

Copyrights continued in perpetuity until all royal privileges were
abolished in 1789 by the National Assembly, after which in July, 1793, a
general copyright law was passed, granting copyright to an author for
his life and to his heirs for ten years thereafter.

{Sidenote: In England}

In England, a Royal Printer was appointed in 1504, and to his successor,
Richard Pynson, in 1518, the first printing "privilege" was issued, in
the form of a prohibition for two years of the printing by any other
person of a certain speech to which this first English copyright notice
was appended. Bishop Fell, in his memoirs on the state of printing in
the University of Oxford, states that this University had been granted
certain exclusive privileges of transcribing and multiplying books by
means of writing; and Lowndes in his early "Historical sketch of the law
of copyright," published in 1840 and 1842, cites many early privileges,
most commonly for seven years, granted after the invention of printing.

An early enactment of Richard III, in 1483, had encouraged the
circulation of books by exempting from certain restraints on aliens "any
artificer, or merchant stranger, of what nation or country he be, for
bringing into this realm, or selling by retail or otherwise, any books
written or printed, or for inhabiting within this said realm for the
same intent, or any scrivener, alluminor, reader, or printer of such
books." But fifty years later, under Henry VIII, this exemption was
repealed by an act, "for printers and binders of books," which provided
that no persons "resident or inhabitant within this realm shall buy to
sell again, any printed books brought from any parts out of the King's
obeysance, ready bound in boards, leather, or parchment," or buy "of any
stranger born out of the King's obedience, other than of denizens, any
manner of printed books brought from any parties beyond the sea, except
only by engross, and not by retail"--the buyer to be punished by a fine,
of which a moiety was to go to the informer. The act also contained
provisions to "reform and redress," through the Chancery judges with
"twelve honest and discreet persons," "too high and unreasonable
prices."

{Sidenote: Book restriction}

The quaint preamble of this act of 1533 sets forth as its "whereas," in
reference to the act of Richard III, that "there hath come to this realm
sithen the making of the same, a marvelous number of printed books, and
daily doth; and the cause of the making of the same provision seemeth to
be, for that there were but few books, and few printers within this
realm at that time, which could well exercise and occupy the said
science and craft of printing; nevertheless, sithen the making of the
said provision, many of this realm, being the King's natural subjects,
have given them so diligently to learn and exercise the said craft of
printing, that at this day there be within this realm a great number
cunning and expert in the said science or craft of printing, as able to
exercise the said craft in all points, as any stranger in any other
realm or country; and furthermore, where there be a great number of the
King's subjects within this realm, which live by the craft and mystery
of binding of books, and that there be a great multitude well expert in
the same, yet all this notwithstanding, there are divers persons that
bring from beyond the sea great plenty of printed books, not only in the
Latin tongue, but also in our maternal English tongue, some bound in
boards, some in leather, and some in parchment, and them sell by retail,
whereby many of the King's subjects, being binders of books, and having
no other faculty wherewith to get their living, be destitute of work and
like to be undone, except some reformation herein be had." This is
interesting in connection with the American manufacturing clause.

{Sidenote: Early English protection}

Henry VIII granted many printing privileges, and in 1530 the first
English copyright to an author was issued to John Palsgrave, who, having
prepared a French grammar at his own expense, received a privilege for
seven years. In 1533 appeared the first complaint of piracy, that of
Wynken de Worde, who obtained the King's privilege for his second
edition of Witinton's Grammar, because Peter Trevers had reprinted it
from the edition of 1523. Up to the middle of the sixteenth century
copyrights were in form printers' licenses, and even in the case cited
Palsgrave seems to have been recognized rather because he published his
own book than because he wrote it.

{Sidenote: The Stationers' Company}

The Stationers' Company, created by Henry VIII and chartered under Queen
Mary in 1556, though the development of an earlier guild dating from
1403, was in part a device to prevent seditious printing, by prohibiting
any printing in England except by those registered in its membership. In
1558, under a second charter, its by-laws provided that every one who
printed a book should register it and pay a fee, and those who failed to
do this, or who printed another member's book, were to be fined. In 1562
licenses were declared void "if any other has a right," and in 1573
sales of "copy" are entered. The practice had grown up of granting
patents or monopolies to persons for a whole class of books; the
Stationers' Company itself held that for almanacs up to a very late
period, and the Crown has retained that on the Bible and the Book of
Common Prayer to the present day. These monopolies were defied, and the
Star Chamber decree of 1566, disabling offending printers from
exercising their trade and prescribing imprisonment, did not avail. In
1640 the Star Chamber and all the regulations of the press were
abolished by the Long Parliament, but the abuse of unlicensed printing
led to a new licensing act in 1643, which prohibited printing or
importing without consent of the _owner_, on pain of forfeiture of
copies to the owner, and which renewed the order that all books should
be entered in the register of the Stationers' Company. The early
registers still exist in Stationers' Hall, near Paternoster Row, London,
in quaint and almost undecipherable chirography, and some of them have
been reissued in _facsimile_. It was against the licensing act of this
date that Milton, in 1644, printed his "Areopagitica," but he
particularly excepts from his criticism of the act the part providing
for "the just retaining of each man his several copy, which God forbid
should be gainsaid."

{Sidenote: Statutory provisions}

In 1649 Parliament provided a penalty of 6_s._ 8_d._ and forfeiture for
the reprinting of registered books, and prohibited presses except at
London, Finsbury, York, and the universities, and in 1662 it added the
requirement of deposit of a copy at the King's library and at each of
the universities. To prevent fraudulent changes in a book after
licensing, it was further required that a copy be deposited with the
licenser at the time of application--apparently the origin of our
record-deposit. With the expiration of these acts in 1679, legislative
penalties lapsed and piracy became common. Charles II in 1684 renewed
the charter of the Stationers' Company, approved its register, and
confirmed to proprietors of books "the sole right, power, and privilege
and authority of printing, as has been usual heretofore." The licensing
act of 1649-62 was revived in 1685, and renewed up to 1694, although the
booksellers now petitioned against it, and eleven peers protested
against subjecting learning to a mercenary and perhaps ignorant
licenser, and destroying the property of authors in their copies. The
law lapsed because of the indignation of the Commons against the
arbitrary power of the license, but the result was the abolition of
statutory penalties, which left the punishment of piracy a matter of
damages at common law, requiring a separate action for each copy sold,
usually against irresponsible people. Piracy again flourished. The right
at common law seems, however, to have been unquestioned, and the Court
of Common Pleas held that a plaintiff who had purchased from the
executors of an author was owner of the property at common law. Owners
of literary property petitioned Parliament, 1703 to 1709, for security
and redress, declaring that the property of English authors had always
been held as sacred among the traders, that conveyance gave just and
legal title, that the property was the same with houses and other
estates, and that existing "copies" had cost at least £50,000, and had
been used in marriage settlements and were the subsistence of many
widows and orphans. This led to the famous statute of Anne, introduced
in 1709, and passed March, 1710, "for the encouragement of learning,"
said to have been drawn in its original form by Swift, which remains the
practical foundation of copyright in England and America to-day.



III

THE DEVELOPMENT OF STATUTORY COPYRIGHT IN ENGLAND


{Sidenote: The statute of Anne as foundation}

The statute of Anne, the foundation of the present copyright system of
England and America, which took effect April 10, 1710, gave the author
of works then existing, or his assigns, the sole right of printing for
twenty-one years from that date and no longer; of works not then
printed, for fourteen years and no longer, except in case he were alive
at the expiration of that term, when he could have the privilege
prolonged for another fourteen years. Penalties were provided, which
could not be exacted unless the books were registered with the
Stationers' Company, and which must be sued for within three months
after the offence. If too high prices were charged, the Queen's officers
might order them lowered. A book could not be imported without written
consent of the owner of the printing right. The number of deposit copies
was increased to nine. The act was not to prejudice any previous rights
of the universities and others.

{Sidenote: Its relations to common law}

{Sidenote: The crucial cases}

This act did not touch the question of rights at common law, and soon
after its statutory term of protection on previously printed books
expired, in 1731, lawsuits began. The first was that of Eyre _v._
Walker, in which Sir Joseph Jekyll granted, in 1735, an injunction as to
"The whole duty of man," which had been first published in 1657, or
seventy-eight years before. In this and several other cases the Court of
Chancery issued injunctions on the theory that the legal right was
unquestioned. But in 1769 the famous case of Millar _v._ Taylor, as to
the copyright of Thomson's "Seasons," brought directly before the Court
of King's Bench the question whether rights at common law still existed,
aside from the statute and its period of protection. In this case Lord
Mansfield and two other judges held that an author had, at common law, a
perpetual copyright, independent of statute, one dissenting justice
holding that there was no such property at common law. The copyright was
sold by Millar's executors to Becket, who prosecuted Donaldson for
piracy and obtained from Lord Chancellor Bathurst a perpetual
injunction. In 1774, in the famous case of Donaldson _v._ Becket, this
decision was appealed from, and the issue was carried to the highest
tribunal, the House of Lords.

{Sidenote: The Judges' opinions}

The House of Lords propounded five questions to the judges. These, with
the replies,[1] were as follows:

I. Whether, at common law, an author of any book or literary composition
had the sole right of first printing and publishing the same for sale;
and might bring an action against any person who printed, published and
sold the same without his consent? Yes, 10 to 1 that he had the sole
right, etc.,--and 8 to 3 that he might bring the action.

II. If the author had such right originally, did the law take it away,
upon his printing and publishing such book or literary composition; and
might any person afterward reprint and sell, for his own benefit, such
book or literary composition against the will of the author? No, 7 to 4.

III. If such action would have lain at common law, is it taken away by
the statute of 8th Anne? And is an author, by the said statute,
precluded from every remedy, except on the foundation of the said
statute and on the terms and conditions prescribed thereby? Yes, 6 to 5.

IV. Whether the author of any literary composition and his assigns had
the sole right of printing and publishing the same in perpetuity, by the
common law? Yes, 7 to 4.

V. Whether this right is any way impeached, restrained, or taken away by
the statute of 8th Anne? Yes, 6 to 5.

  Footnote 1: The votes on these decisions are given
     differently in the several copyright authorities. These
     figures are corrected from 4 Burrow's Reports, 2408, the
     leading English parliamentary reports, and are probably
     right.

{Sidenote: The Lords' decision}

These opinions, that there was perpetual copyright at common law, which
was not lost by publication, but that the statute of Anne took away that
right and confined remedies to the statutory provisions, were directly
contrary to the previous decrees of the courts, and on a motion seconded
by the Lord Chancellor, the House of Lords, 22 to 11, reversed the
decree in the case at issue. This construction by the Lords, in the case
of Donaldson _v._ Becket, of the statute of Anne, has practically "laid
down the law" for England and America ever since.

{Sidenote: Protests}

Two protests against this action deserve note. The first, that of the
universities, was met by an act of 1775, which granted to the English
and Scotch universities (to which Dublin was added in 1801), and to the
colleges of Eton, Westminster and Winchester, perpetual copyright in
works bequeathed to and printed by them. The other, that of the
booksellers, presented to the Commons February 28, 1774, set forth that
the petitioners had invested large sums in the belief of perpetuity of
copyright, but a bill for their relief was rejected.

{Sidenote: Supplementary legislation}

In 1801 an act was passed authorizing suits for damages [at common law,
as well as penalties under statute] during the period of protection of
the statute, the need for such a law having been shown in the case of
Beckford _v._ Hood in 1798, wherein the court had to "stretch a point"
to protect the plaintiff's rights in an anonymous book, which he had not
entered in the Stationers' register.

{Sidenote: The Georgian period}

Meantime, during the Georgian period, there had been much incidental
copyright legislation. The provision in the statute of Anne for the
limitation of prices was repealed by the act of 1739, which also
continued the prohibition of the importation of foreign reprints,
further continued in later acts or customs regulations from time to
time, until these were disposed of by the statute law revision act of
1867. Copyright had been extended to engravings and prints by successive
acts of 1734-5 (8 George II, c. 13), 1766-7 (7 George III, c. 38) and
1777 (17 George III, c. 57); to designs for linen and cotton printing by
acts of 1787, 1789 and 1794; to sculpture by acts of 1798 and 1814 (54
George III, c. 56). A private copyright act of 1734 granted to Samuel
Buckley, a citizen and stationer of London, sole liberty of printing an
improved edition of the histories of Thuanus, and the engravings act of
1767 contained a similar special provision for the widow of Hogarth. In
1814 also, copyright in books was extended to twenty-eight years and the
remainder of life, and the author was relieved from delivering the
eleven library copies then required, except on demand. The university
copyright act of 1775 (15 George III, c. 53), above-mentioned, and the
other acts given with specific citation above, still constitute, in
certain unrepealed provisions, a part of the English law, although
others of their provisions and other laws were repealed by later
copyright acts or by the statute law revision act of 1861 or that of
1867.

{Sidenote: Legislation under William IV}

In the reign of William IV the dramatic copyright act of 1833 (3 William
IV, c. 15) became, and in part remains, the basis of copyright in drama.
The lectures copyright act of 1835 (5 & 6 William IV, c. 65) for the
first time covered that field. In 1836 the prints and engravings
copyright (Ireland) act (6 & 7 William IV, c. 59) extended protection to
those classes in that country, and another copyright act (6 & 7 William
IV, c. 110) reduced the number of library copies required to five. These
laws also remain in force, in unrepealed provisions, as a part of
British copyright law.

{Sidenote: The Victorian act of 1842}

In 1841, under the leadership of Serjeant Talfourd, author of "Ion" and
other dramatic works, a new copyright bill was presented to the House of
Commons, in the preparation of which George Palmer Putnam, the American
publisher, then resident in London, had been consulted. It provided for
compulsory registration and extended the term to life and thirty years.
The bill attracted little attention and met with no opposition until the
second reading, when Lord Macaulay, a bachelor, interested in fame
rather than profit to an author or his descendants, attacked the bill
and "the great debate" ensued. Macaulay offered a bill limiting
copyright to the life of the author, but finally assented to a
compromise, by which the term was made forty-two years or the life of
the author and seven years, whichever the longer. The resulting
copyright act of 1842 (5 & 6 Victoria, c. 45) presented a new code of
copyright, covering the ground of previous laws, but not in terms
repealing them. As a result, provisions not specifically repealed or
superseded remained in force, and the act of 1842, though serving since
as the basic act, has had to be construed with the previous acts in
view. The bill practically preserved, however, the restrictions of the
statute of Anne. The term of forty-two years or life and seven years is
applied to articles in periodicals, but the right in these reverts to
the author after twenty-eight years. The Judicial Committee of the Privy
Council may authorize the publication of a work which after the author's
death the proprietor of the copyright refuses to republish.

{Sidenote: Protection of designs}

In the same year, 1842, there was passed also a copyright in designs
act, covering designs for articles of manufacture, consolidating
previous laws on this specific subject from 1787 to 1839 (two bills in
this last year having extended protection to printing designs for woolen
and other fabrics and to articles of manufacture generally), and
providing for a registrar for such designs,--in which act the careless
use of the word "ornamenting" seemed so to limit the scope that an
amendatory act was passed in 1843.

{Sidenote: Subsequent acts}

An international copyright act, introduced in the first year of the
Victorian reign, had been passed in 1838, to protect foreign books
reprinted in England, but it proved inadequate and was repealed by the
subsequent act of 1844 (7 & 8 Victoria, c. 12), providing more
comprehensively for international copyright, on the basis of
registration and deposit in London. The colonial copyright act of 1847
(10 & 11 Victoria, c. 95) authorized copyright legislation by any
colony, subject to the approval of the Crown, and the suspension for
such colony of the prohibition of foreign reprints, which act is
therefore often cited as the foreign reprints act. An act of 1850
further covered designs and provided for their provisional registration,
and one in 1851 protected exhibits at the international exhibition of
that year in London. A third international copyright act was passed in
1852 (15 & 16 Victoria, c. 12) covering translations and including an
authorization of a special treaty with France. The fine arts copyright
act of 1862 (25 & 26 Victoria, c. 68) extended copyright to paintings,
drawings, and photographs, hitherto unprotected, for life and seven
years. A fourth international copyright act of 1875 (38 & 39 Victoria,
c. 12) protected foreign dramatic works from imitation or adaptation on
the English stage, which had been specifically permitted by the previous
law, and in the same year "The Canada copyright act" (38 & 39 Victoria,
c. 53) gave effect to a Canadian parliament act respecting copyright
reprints.

{Sidenote: The Royal Commission report of 1878}

"The law of England, as to copyright," says the report of the Royal
Copyright Commission, in a blue-book of 1878, "consists partly of the
provisions of fourteen Acts of Parliament, which relate in whole or in
part to different branches of the subject, and partly of common law
principles, nowhere stated in any definite or authoritative way, but
implied in a considerable number of reported cases scattered over the
law reports." The digest, by Sir James Stephen, appended to this report,
is presented by the Commission as "a correct statement of the law as it
stands." This digest is one of the most valuable contributions to the
literature of copyright, but the frequency with which such phrases occur
as "it is probable, but not certain," "it is uncertain," "probably," "it
seems," shows the state of the law, "wholly destitute of any sort of
arrangement, incomplete, often obscure," as says the report itself. The
digest is accompanied, in parallel columns, with alterations suggested
by the Commission, and it is much to be regretted that their work failed
to reach the expected result of an act of Parliament. The evidence taken
by the Commission forms a second blue-book, also of great value.

This report and digest covered legislation through 1875, inclusive of
the Canada act. They seem also to have regarded, though the act is not
specified in the schedule, the consolidated customs act of 1876 (39 & 40
Victoria, c. 36), which incidentally contained the provisions for the
prohibition of the importation of copyright books.

{Sidenote: Later legislation}

Despite the recommendations of the Commission and several later
endeavors to pass a comprehensive copyright act,--of which the most
important was Lord Monkswell's bill introduced into Parliament on behalf
of the British Society of Authors, November 16, 1890, and given in full
with an analysis by Walter Besant in George Haven Putnam's "Question of
copyright"--later legislation in England has been confined practically
to two topics, international copyright and the vexed question of musical
compositions.

{Sidenote: International copyright}

The international copyright act of 1886 (49 & 50 Victoria, c. 43),
amending and extending, and in part repealing the earlier international
copyright acts and provisions, was intended to enable Great Britain,
through Orders in Council, to become a party to international
agreements, particularly the Berne copyright convention of 1886,
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 convention was to extend to the British possessions, though
with exceptions in some respects. The revenue act of 1889 (52 & 53
Victoria, c. 42) extended the prohibition of importation to foreign
works copyrighted under the act of 1886, "printed or reprinted in any
country or state" other than that "in which they were first published,"
if registered as required by the customs authorities.

{Sidenote: Musical copyright}

The protection of musical compositions was in such confused and
unsatisfactory condition that special legislation was necessary. The
recent laws on this subject, described in detail in the chapter on
dramatic and musical copyright, include the copyright (musical
compositions) act of 1882 (45 & 46 Victoria, c. 40); the copyright
(musical compositions) act of 1888 (51 & 52 Victoria, c. 17); the
musical (summary proceedings) copyright act of 1902 (2 Edward VII, c.
15); and the musical copyright act of 1906 (6 Edward VII, c.
36),--following the report of the Musical Copyright Committee of
1904,--which successively met imperfections developed in applying the
previous law.

{Sidenote: Committee report of 1909}

After the adoption of the revised international copyright convention
signed at Berlin November 13, 1908, modifying the Berne-Paris
conventions, a Committee on the law of copyright consisting of seventeen
publicists, authors, artists, publishers and others was appointed by
minute of March 9, 1909, by the President of the Board of Trade, to
consider and report upon the modification of domestic legislation in
conformity with the Berlin agreement of 1908. The Committee made a
report in December, 1909, strongly advising that domestic legislation be
brought into line with international practice and that the copyright
term in Great Britain be for life and fifty years. With the report was
printed a blue-book of minutes of evidence, containing valuable
appendixes which included a _projêt de loi type_ (model bill) on
copyright, drafted by the International Literary and Artistic
Association, and an artistic copyright bill drafted by the Artistic
Copyright Society.

{Sidenote: Imperial copyright conference of 1909}

In the early part of 1909 an Imperial copyright conference was also held
in London, attended by Crown officials and representatives from all of
the self-governing dominions, at which certain resolutions for copyright
betterment were adopted. Its minutes and resolutions were also presented
to Parliament.

{Sidenote: The pending bill}

As a result of the deliberations and reports of these two bodies, "a
bill to amend and consolidate the law relating to copyright" (1 George
V) was introduced into the House of Commons July 26, 1910, in the names
of Mr. Buxton, Mr. Solicitor-General, Colonel Seely and Mr. Tennant, the
adoption of which would provide a copyright code similar in extent to
the American code of 1909, and applicable throughout the British
dominions, with the proviso that the self-governing dominions may accept
or modify the code or legislate separately, and providing also for
international copyright. The bill adopted most of the features of the
Berlin convention including the term of life and fifty years, covered
literary, dramatic, musical and artistic works, including architectural
works of art, and while distinguishing between first publication and
performance, included under copyright acoustic or visual performance or
exhibition and control for mechanical reproduction. The bill, somewhat
modified, was reintroduced into the subsequent Parliament March 30,
1911, emerged from committee with important alterations July 13, 1911,
and was passed with slight additional changes by the House of Commons
August 17, and first read in the House of Lords August 18, 1911. On
passage of the House of Lords, it becomes effective July 1, 1912, unless
earlier date is provided by Order in Council. The bill repeals by
specific schedule all existing laws except specified sections in the
fine arts copyright act of 1862, the musical copyright acts of 1902 and
1906, and the copyright provisions in the customs consolidation act of
1876 and the revenue act of 1889. The provisions of the new measure are
specifically treated and summarized comprehensively in later chapters
and the full text is given in the appendix.

{Sidenote: Design patents}

The bill does not, however, repeal the previous law as to copyright in
designs, which had continued to receive consideration during the
Victorian reign in laws, later than those cited, of 1858-1861, and thus
finally became merged in the protection of patents. Thus "designs
capable of being registered under the patents and designs act, 1907,"
are specifically excepted under clause 22 of the proposed copyright
code.

{Sidenote: Common law rights}

It seems possible that, under the precedent of the acts of 1775 and
1801, the common law rights practically taken away by the statute of
Anne and specifically abrogated by the proposed bill, could have been
restored by legislation. These restrictions have not only ruled the
practice of England ever since, but they were embodied in the
Constitution of the United States, and have influenced alike our
legislators and our courts.



IV

THE HISTORY OF COPYRIGHT IN THE UNITED STATES


{Sidenote: Constitutional provision}

The Constitution of the United States authorized Congress "to promote
the progress of science and useful arts by securing for limited times,
to authors and inventors, the exclusive right to their respective
writings and discoveries." Previous to its adoption, in 1787, the nation
had no power to act, but on Madison's motion, Congress, in May, 1783,
recommended the States to pass acts securing copyright for fourteen
years.

{Sidenote: Early state legislation}

Connecticut in January, 1783, Massachusetts in March, 1783, and Maryland
in April, 1783, had already provided for copyright, twenty-one years
being the usual period. New Jersey on May 27, 1783, and New Hampshire
and Rhode Island in December of the same year, followed Madison's
suggestion. Pennsylvania and South Carolina in March, 1784, Virginia and
North Carolina in 1785, Georgia and New York in 1786, also passed
copyright acts, so that all the thirteen States except Vermont had
separately provided for copyright,--thanks to the vigorous copyright
crusade of Noah Webster, who traveled from capital to capital,--when the
United States statute of 1790 made them unnecessary.

{Sidenote: The act of 1790}

This act followed the precedent of the English act of 1710, and gave to
authors who were citizens or residents, their heirs and assigns,
copyright in books, maps and charts for fourteen years, with renewal for
fourteen years more, if the author were living at expiration of the
first term. A printed title must be deposited before publication in the
clerk's office of the local United States District Court; notice must be
printed four times in a newspaper within two months after publication; a
copy must be deposited with the United States Secretary of State within
six months after publication; the penalties were forfeiture and a fine
of fifty cents for each sheet found, half to go to the United States; a
remedy was provided against unauthorized publication of manuscripts.

{Sidenote: 1802-1867}

{Sidenote: The revised act of 1870}

{Sidenote: 1874-1882}

This original and fundamental act was followed by others--in 1802,
requiring copyright record to be printed on or next the title-page, and
including designs, engravings and etchings; in 1819, giving United
States Circuit Courts original jurisdiction in copyright cases; in 1831
(a consolidation of previous acts), including musical compositions,
extending the term to twenty-eight years, with renewal for fourteen
years to author, widow, or children, doing away with the newspaper
notice except for renewals, and providing for the deposit of a copy with
the district clerk (for transmission to the Secretary of State) within
three months after publication; in 1834, requiring record of assignment
in the court of original entry; in 1846 (the act establishing the
Smithsonian Institution), requiring one copy to be delivered to that,
and one to the Library of Congress; in 1855, a postal provision for free
mailing of deposits; in 1856, securing to dramatists the right of
performance; in 1859, repealing the provision of 1846 for the deposit of
copies, and making the Interior Department instead of the State
Department the copyright custodian; in 1861, providing for appeal in all
copyright cases to the Supreme Court; in 1865, including photographs and
negatives, and again requiring deposit with the Library of Congress,
within one month from publication; in 1867, providing $25 penalty for
failure to deposit. This makes twelve acts bearing on copyright up to
1870, when a general act took the place of all, including "paintings,
drawings, chromos, statues, statuary, and models or designs intended to
be perfected as works of the fine arts." This did away with the local
District Court system of registry, and made the Librarian of Congress
the copyright officer, with whom printed title must be filed before, and
two copies deposited within ten days after, publication. In 1873-4 the
copyright act was included in the Revised Statutes as sections 4948 to
4971 (also see secs. 629 and 699), and in 1874 an amendatory act made
legal a short form of record, "Copyright, 18--, by A. B.," and relegated
labels to the Patent Office. In 1879 the Post Office appropriation bill
contained a proviso against the transmission of any publication which
violates copyright; in 1882 an amendment dealt with the position of the
copyright notice on moulded, decorative articles, etc.

{Sidenote: International copyright legislation, 1891}

In 1891 there was passed, after a long campaign, the so-called
international copyright act, extending copyright to the citizens of
other nations in case of reciprocal grants by such nations, and
providing that the copyright on books and certain other articles should
be conditioned on manufacture in the United States. In 1893 an
amendatory act gave the same effect to copies deposited "on or before
publication." In 1895 the public documents bill provided that no
government publication should be copyrighted, and another bill imposed
penalties in the case of infringement of photographs and of original
works of art. In 1897 an act provided that unauthorized representation,
wilful and for profit, of any dramatic or musical composition is a
misdemeanor punishable by imprisonment; another act provided for the
appointment of a Register of Copyrights under the direction and
supervision of the Librarian of Congress; and a third act provided
penalty for printing false claim of copyright and prohibited the
importation of articles bearing a false claim of copyright. In 1904
provision was made for protection to exhibitors of foreign literary,
artistic or musical works at the Louisiana Purchase Exposition. A bill
of 1905 permitted _ad interim_ copyright for one year of books published
abroad if registered here within thirty days publication and bearing
notice of reservation.

{Sidenote: Private copyright acts}

A curious incident in American copyright legislation has been the
passage of private copyright acts, nine in all, of which the earliest in
1828, as amended in 1830 and 1843, continued the copyright of John
Rowlett "in a useful book, called Rowlett's Tables of discount and
interest" from its original publication in 1802 till 1858,--curiously
the present period of fifty-six years. In 1849 the copyright of Levi H.
Corson in a perpetual calendar or almanac was renewed by special act. In
1854 an appropriation of $10,000 was made to Thomas H. Sumner for his
new method of ascertaining a ship's position and the copyright was
extinguished. In 1859 a special act gave to "Mistress Henry R.
Schoolcraft" and her heirs for fourteen years the right to republish her
husband's work on the Indian tribes originally published by order of
Congress and to make any abridgement thereof, and a similar special
copyright was voted in 1866 for Herndon's "Exploration of the Amazon"
for his widow. An act of 1874 authorized the validation of William Tod
Helmuth's work on surgery which had been imperfectly entered for
copyright two years before, and a ninth private act in 1898 validated
for like reason the copyright of Judson Jones in a work on orthoepy.

{Sidenote: American possessions}

In 1900 the act for the government of the territory of Hawaii repealed
the Hawaiian copyright act of 1888 and extended United States copyright
to Hawaii. In the same year the act providing temporary government for
Porto Rico extended the copyright laws to that island. In 1904 the
Attorney General rendered an opinion that Philippine authors were
entitled to United States copyright but that the book must be
manufactured within the United States. Hawaii, Porto Rico and the
Philippine Islands, as well as Alaska, were later included by name in
the jurisdiction of the code of 1909. American copyright was extended to
the Canal Zone by War Department order in 1907.

{Sidenote: The American code of 1909}

Finally, in 1909, there was passed the new copyright code repealing all
previous legislation and providing comprehensively for the whole subject
of copyright, literary, artistic, dramatic, musical, or other. Under
this code copyright is effected by publication with the statutory notice
of copyright and completed by registration of two deposit copies sent to
the Copyright Office promptly after publication. The manufacturing
clause is continued and extended to require printing and binding as well
as type-setting within the United States. The musical author is given
control over mechanical reproductions though under provision for
compulsory license in case he permits any such reproduction. The
copyright term is for twenty-eight years with a like renewal term,
making fifty-six years. Rights of performance are included under
copyright, and unpublished works are specifically protected by special
registration. These are the salient features of the code which is stated
and discussed in detail in succeeding chapters.

{Sidenote: State protection of playright}

In line with the dramatic act of 1897, the dramatic authors between 1895
and 1905 procured state legislation in the States of New Hampshire, New
York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts,
Minnesota, California, Wisconsin, Connecticut and Michigan, differing
somewhat in form, to give effect to the federal copyright laws in
respect to dramatic performance or to apply the principles of common law
through the punishment of dramatic companies disregarding performing
rights.

{Sidenote: Citations}

{Sidenote: Trade-Mark act}

Citations of all these laws will be found in Appendix A of the report of
copyright legislation from the Register of Copyrights, included in the
report of the Librarian of Congress for 1904; and the full text of the
United States acts, except the later ones, are given in "Copyright
Enactments 1783-1904" issued from the Copyright Office in 1905 as
Bulletin No. 3, and in a second revised and enlarged edition, extending
to 1906, reissued in 1906. The Trade-Mark act of February 20, 1905,
supplemented by an act of May 4, 1906, covers the protection of labels,
etc., excluded from copyright by the copyright act, and is given, with a
list of trade-mark laws of foreign nations, and trade-mark treaties with
them, rules, indexes, etc., in a Government publication, entitled
"United States Statutes concerning the registry of trade-marks with the
rules of the Patent Office relating thereto."

{Sidenote: Common law relations}

The act of 1790 received an interpretation, in 1834, in the case of
Wheaton _v._ Peters (rival law reports), at the bar of the U. S. Supreme
Court, which placed copyright in the United States exactly in the
_status_ it held in England after the decision of the House of Lords in
1774. The court referred directly to that decision as the ruling
precedent, and declared that by the statute of 1790 Congress did not
affirm an existing right, but created a right. It stated also that there
was no common law of the United States and that (English) common law as
to copyright had not been adopted in Pennsylvania, where the case arose.
So late as 1880, in Putnam _v._ Pollard, claim was made that this ruling
decision did not apply in New York, which, in its statute of 1786,
expressly "provided, that nothing in this act shall extend to, affect,
prejudice, or confirm the rights which any person may have to the
printing or publishing of any books or pamphlets at common law, in cases
not mentioned in this act." But the N. Y. Supreme Court decided that the
precedent of Wheaton _v._ Peters nevertheless held. During the
discussion of the present copyright code, Edward Everett Hale consulted
with other veteran authors whose early works were passing out of
copyright, with the intention of bringing a test case for the extension
of copyright under common law after the expiration of the statutory
period. But on proposing such a case to legal counsel he became assured
that such a suit could not be maintained.

{Sidenote: Divided opinions}

As in the English case of Donaldson _v._ Becket, the decision in the
American ruling case of Wheaton v. Peters came from a divided court. The
opinion was handed down by Justice McLean, three other judges agreeing,
Justices Thompson and Baldwin dissenting, a seventh judge being absent.
The opinions of the dissenting judges, given in Eaton S. Drone's "A
treatise on the law of property in intellectual productions," constitute
one of the strongest statements ever made of natural rights in literary
property, in opposition to the ruling that the right is solely the
creature of the statute. "An author's right," says Justice Thompson,
"ought to be esteemed an inviolable right established in sound reason
and abstract morality." There seems, indeed, to be a sense of natural
copyright among the American Indians; an Ojibwa brave will not sing the
song belonging to another tribe or singer, and a Chippewa youth may
learn his father's songs, on a customary gift of tobacco, but does not
inherit the right to sing them.



V

SCOPE OF COPYRIGHT: RIGHTS AND EXTENT


{Sidenote: General scope}

The scope of copyright, or the nature and extent of the right or
privilege, may be said to cover at common law identical rights with
those in any other property, to use the phrase which, in Siam, transfers
these rights to statutory law, but in statutory law must be taken to
depend upon the terms of the statute.

{Sidenote: American provisions}

The new American copyright code, passed March 4, 1909, and in force July
1, 1909, in its fundamental provision broadly sets forth and
specifically defines the scope of copyright, by providing (sec. 1):
"That any person entitled thereto, upon complying with the provisions of
this Act, shall have the exclusive right:

"(a) To print, reprint, publish, copy, and vend the copyrighted work;

"(b) To translate the copyrighted work into other languages or dialects,
or make any other version thereof, if it be a literary work; to
dramatize it if it be a non-dramatic work; to convert it into a novel or
other non-dramatic work if it be a drama; to arrange or adapt it if it
be a musical work; to complete, execute, and finish it if it be a model
or design for a work of art;

{Sidenote: Oral addresses}

"(c) To deliver or authorize the delivery of the copyrighted work in
public for profit if it be a lecture, sermon, address, or similar
production;

{Sidenote: Dramas}

"(d) To perform or represent the copyrighted work publicly if it be a
drama, or, if it be a dramatic work and not reproduced in copies for
sale, to vend any manuscript or any record whatsoever thereof; to make
or to procure the making of any transcription or record thereof by or
from which, in whole or in part, it may in any manner or by any method
be exhibited, performed, represented, produced, or reproduced; and to
exhibit, perform, represent, produce, or reproduce it in any manner or
by any method whatsoever;

{Sidenote: Music}

"(e) To perform the copyrighted work publicly for profit if it be a
musical composition and for the purpose of public performance for
profit; and for the purposes set forth in subsection (a) hereof, to make
any arrangement or setting of it or of the melody of it in any system of
notation or any form of record in which the thought of an author may be
recorded and from which it may be read or reproduced"--which last clause
is, however, limited by an elaborate proviso requiring the licensing of
mechanical musical reproductions in case the copyright proprietor
permits any reproduction by that means, which proviso is given in full
in the chapter on mechanical music.

{Sidenote: Previous American law}

The American law previously defined the scope of copyright (Rev. Stat.
sec. 4952), as "the sole liberty of printing, reprinting, publishing,
completing, copying, executing, finishing, and vending the same; and, in
the case of a dramatic composition, of publicly performing or
representing it, or causing it to be performed or represented by others.
And authors may reserve the right to dramatize or to translate their own
works." The new code is both broader and more definite.

{Sidenote: Unpublished works}

The new American code is specific in preserving to an author previous to
the publication of his work all common law rights in the comprehensive
language (sec. 2): "That nothing in this Act shall be construed to annul
or limit the right of the author or proprietor of an unpublished work,
at common law or in equity, to prevent the copying, publication, or use
of such unpublished work without his consent, and to obtain damages
therefor."

{Sidenote: Common law scope}

In the Washburn form of the copyright bill it was proposed to include a
clause to the effect "that subject to the limitations and conditions of
this Act copyright secured hereunder shall be entitled to all the rights
and remedies which would be accorded to any other species of property at
common law." But this provision was not accepted by the Congressional
Committees and does not form part of the copyright code as enacted.

{Sidenote: Common law in U. S. practice}

The common law of England became the common law of its colonies and
finally of the sovereign States of the United States, and common law is
therefore administered by the state rather than by the federal courts.
In the case of Wheaton _v._ Peters, the U. S. Supreme Court went so far
as to say "there is no common law of the United States," but federal
courts accept and apply in each State the common law as accepted in that
State, and in later years the U. S. Supreme Court has held, as in 1901,
in Western Union Tel. Co. _v._ Call Pub. Co., that where there is a
conflict between the common law as accepted by different States or where
the rule adopted is not in accord with federal courts, the United States
courts will recognize and enforce the common law of England. This use by
the federal courts, as here pointed out by Justice Brewer, is peculiarly
applicable to interstate transactions. The effect of section 2 of the
copyright code is to give the federal courts the special authority of
Congress to accept and enforce the principles of common law and of
equity in the case of unpublished works.

{Sidenote: Statutory limitations}

But in the case of a published work, the courts have denied to copyright
works some of the rights and remedies applicable previous to
publication, because not specifically granted by statute, in accordance
with the established rule that no rights or remedies will be allowed by
the courts unless specifically granted. But the common law right of the
author is recognized by the courts notwithstanding the publication of
his work, if that is done without the author's consent. In 1896, in the
case of Press Pub. Co. _v._ Monroe, the doctrine was specifically held
by the U. S. Circuit Court of Appeals through Judge Lacombe, that the
unauthorized publisher may be restrained and damages obtained by civil
action, and recovery in such an action will not divest the author of any
of his rights or invest any of his rights in the infringer or the
public.

{Sidenote: General rights}

Thus the owner of a copyrightable work may (before publication), as with
other personal property, preserve his work exclusively for his own use,
or he may (1) print, (2) reprint, (3) publish, (4) copy, or (5) vend it;
or

If it be a literary work he may (6) translate it, or (7) make any other
version thereof, or (8) dramatize it; or

If a work for oral delivery he may (9) deliver or authorize delivery in
public for profit; or

If it be a dramatic work he may (10) convert it into a novel or other
non-dramatic form or (11) perform or represent it, or (as in 5) vend any
manuscript or record thereof, or (12) make or cause to be made any
transcription or record thereof; or (13) exhibit, perform, produce, or
reproduce it in any manner or by any method; or

If it be a musical work he may (14) arrange or (15) adapt it, or (as in
11) perform it publicly for profit, or (16) make any arrangement or (17)
setting of the melody in any notation or by any form of record (the last
subject to the license provision of the statute); or

If a design for a work of art, he may (18) complete, execute, and finish
it,

--all these being specifically reserved and granted to the author,
although in somewhat complex and overlapping phraseology, by the new
American code.

{Sidenote: Inferential rights}

Or, in utilizing his rights at common law or as above granted by
statute, he may (19) give, (20) lend, (21) grant, (22) sell, (23)
manufacture, (24) lease or license, (25) mortgage, or (26) devise his
work or the use of it, or (27) it may pass by inheritance,--as pointed
out by Arthur Steuart, chairman of the Copyright Committee of the
American Bar Association, in his argument before the Congressional
Committees.

{Sidenote: Differentiated rights}

Or, as also pointed out by Mr. Steuart, he may "impose upon any of these
estates any condition or limit," as by limiting the use (28) for special
purposes, (29) at a special price, or (30) for a special time, or (31)
in a special locality, or (32) to a special person.

{Sidenote: Court protection}

The rights scheduled, adds Mr. Steuart, the courts will protect (a) "in
equity by injunction and the recovery of profits"; or (b) "at law by a
civil action for trespass or conversion, with a recovery of special
damages for actual injury or punitive damages for injury to reputation,
or by replevin for the recovery of possession of the work, as well as by
any other form of action known to the common law or statute law and
proper to the protection of this class of property."

{Sidenote: Division of rights}

The owner of the copyright of a book may thus publish a limited edition
of his book and sell it to whom he may please, or for a specified
market. Such specified or divided rights are recognized in Germany as
"_getheiltes Verlagsrecht_," in France as "_édition partagée_," and
there is specific reference to them in the German copyright law. Some of
the specified rights are cognate to the rights of a proprietor of land
to sell a piece of land subject to certain restrictions, agreed upon
with the purchaser or imposed upon the title in the deed of transfer. As
in the frequent practice of restricting use for the purposes of a stable
or a shop, or requiring that only one house shall be built on a
specified number of lots.

{Sidenote: Analysis of property rights}

In an elaborate discussion of fundamental principles in his opinion in
Harper _v._ Donohue, in 1905, affirmed by the Circuit Court of Appeals
in 1906, Judge Sanborn analyzed the property rights of an author before
publication, after unrestricted publication and after publication under
the copyright acts. Among the rights before publication he mentions "the
right to sell and assign the author's interest, either absolutely or
conditionally, with or without qualification, limitation or restriction,
territorial or otherwise, by oral or written transfer. Such literary
property is not subject either to execution or taxation, because this
might include a forced sale, the very thing the owner has the right to
prevent." "Unrestricted publication," he says, "without copyright, is a
transfer to the public to do most of the things the author might do, in
common with the author, except all right of transfer and sale, which
remains to the author; but without advantage, since the work has become,
by the publication, common property." "The copyright acts," he
concludes, "substantially give the following additional rights: To
copyright, and thus secure the sole privilege of unlimited
multiplication and sale of copies; to sell or transfer the unlimited
right of reproduction, sale and publication, the limited right of serial
publication, the right of publication in book form, the right of
translation, the right of dramatization or one or more of these rights
in specific territory, and the right to secure a copyright either
generally, or in one or more countries whose laws permit it, either in
the name of the author or assignee. Also the right to the author to
license the sale or other restricted enjoyment of some lesser right,
without the power to copyright."

The courts have indeed held to very broad principles as to such rights.
In the case of Press Pub. Co. _v._ Monroe, the court said:

{Sidenote: Broad interpretation}

"The right of property includes the right to transfer the subject of it
or any interest in it by gift, grant, or device. And if the fruits of
mental effort are regarded as property, like all other possessions, they
descend to the legatees, the executors, and administrators of their
creditors; they pass by sale or gift to their transferees; the use of
them, limited or unlimited, goes to their licensees, and, logically, the
power of the State is bound to protect forever the successive owners in
the exclusive use and enjoyment thereof."

{Sidenote: Limits of protection}

Where these latter rights are not specifically granted by statute, the
rule has been established by the courts that they will be upheld so far
as necessarily inferable from the rights granted and not further. It is
under this rule that the greater number of the mooted questions in the
application of copyright law have arisen in respect to the scope of
copyright. Most of these specific rights are in fact necessary
inferences from the statute, in the protection of the property rights
therein conferred, but the courts will not go beyond fair construction
of the letter of the statute.

{Sidenote: Differentiated contracts}

In respect to the rights to give, lend, grant, manufacture, lease or
license, mortgage or devise copyright property, it may be said that
these are subsidiary rights conditioned on and essential to the general
right of property in copyrightable or copyrighted material. An author
may exercise any of these rights in respect to his unpublished work so
far as they are applicable to it, or to his copyrighted work after
publication; and either the copyrightable manuscript or the copyrighted
work may pass by inheritance. Thus an author may manufacture, or cause
to be manufactured, his unpublished work, and he may retain exclusive
control over the manufactured copies so long as he pleases before
publishing the work; and after publication (which involves placing on
public sale, or publicly distributing) he may exercise these rights
negatively by withdrawing his work from further sale. The English law,
however, contains a provision that in certain cases the Crown may
require continuance of publication.

{Sidenote: Enforcement in limited grants}

In respect to the right to limit the use of his work under his sale,
gift, loan, grant, lease, etc., for a special purpose or at a special
price, or for a special time, or in a special locality or to a special
person, these powers of limitation, though implied in the grant of
copyright, are dependent for their enforcement rather upon the law of
contracts than upon copyright law.

There can be no such thing as a copyright for a special purpose or for a
special locality, or under other special conditions, for there can be
only one copyright, and that a general copyright, in any one work. But
specific contracts can be made, enforceable under the law of contracts,
as for the sale of a copyrighted book within a certain territory,
provided such contracts or limitations are not contrary to other laws.
Although record of assignment in the Copyright Office is provided for by
the law only for the copyright in general, the separate estates as a
right to publish in a periodical and the right to publish as a book may
be sold and assigned separately, and the special assignment recorded in
the Copyright Office, though this does not convey a right to substitute
in the copyright notice a name other than that of the recorded
proprietor of the general copyright, which can only be changed as
specifically provided in the law under recorded assignment of the entire
copyright.

{Sidenote: Copyright as monopoly}

Copyright is a monopoly to which the government assures protection in
granting the copyright. It is a monopoly not in the offensive sense, but
in the sense of private and personal ownership; the public is not the
loser but is the gainer by the protection and encouragement given to the
author. The whole aim of copyright protection is to permit the author to
sell as he pleases and to transfer his rights collectively or severally
to such assigns as he may choose. Copyright is a monopoly only in the
sense that any ownership is a monopoly. Says Herbert Spencer: "If I am a
monopolist, so also are you; so also is every man. If I have no right to
those products of my brain, neither have you to those of your hands. No
one can become the sole owner of any article whatever; and all property
is 'robbery.'" In the copyright debates of 1891, Senator O. H. Platt
rightly said: "The very essence of copyright is the privilege of
controlling the market. That is the only way in which a man's property
in the work of his brain can be assured." And as Senator Evarts pointed
out in the same debate: "The sole question is what we shall do
concerning something which is the essential nature of copyright and
patent protection, namely, monopoly." In discussing patent monopoly and
the law of contracts in Victor Talking Machine Co. _v._ The Fair, the U.
S. Circuit Court of Appeals, through Judge Baker, said, in 1903, that
"within his domain the patentee is czar. The people must take the
invention on the terms he dictates or let it alone for seventeen years."
Thus as the government grants and guarantees the monopoly, it is not to
be taken as in restraint of trade or otherwise contrary to law. Said
Judge Cullen in the case of Murphy _v._ Christian Press Association, in
the Appellate Division of the N. Y. Supreme Court, in 1899, decisions as
to agreements in restraint of trade "have no application to agreements
concerning copyrights and patents, the very object of which is to give
monopolies."

{Sidenote: Limit only in term}

Copyright being in essence a monopoly giving to the copyright proprietor
"exclusive rights," as the Constitution provides, the only limitation
upon it should be that indicated in the Constitution which confines
protection to "limited times." The opponents of copyright have
frequently taken the course of falling back upon the plea that in the
interests of the public the author should not have exclusive right to
his writings and to manage his own affairs, but that Congress should
prescribe how he should market his property. This commonly takes shape
in the licensing scheme known in England as the Farrer plan and in
America as the Pearsall-Smith plan, with respect to books; and in the
passage of the "international copyright amendment" of 1891 this plan was
made the basis of attack upon the measure. An analysis of the scheme as
presented by R. Pearsall-Smith of Philadelphia is given by G. H. Putnam,
from the book publisher's point of view, in the "Question of copyright."
In the work on "The law and history of copyright," by Augustine Birrell,
a member of the present British cabinet, this plan is characterized as a
"preposterous scheme." In the case of a book, for instance, a publisher
often suggests to the author the general idea of the book, so that it
would be doubly unjust to permit any other publisher to issue that book
on the compulsory license scheme; and this might hold true, although to
less extent, in other fields of copyright. In any event, the original
publisher makes large investment not only in type-setting, printing, and
binding a book, or in the publishing of any other work, but in
advertising and making a market, and that a rival publisher should have
the benefit of this market without paying the cost is a violation of the
very essence of property. This scheme, however, is applied, in a limited
way and as a compromise, respecting mechanical music, in the American
code of 1909, and constitutes its most serious defect. There is
question, indeed, whether the compulsory license and fixed price may not
be an unconstitutional provision. This matter is more fully discussed in
later chapters.

{Sidenote: Altered theory of copyright}

It should be noted that whereas the previous American law required
certain statutory formalities before publication, the new American code
somewhat alters the theory of copyright, and more nearly conforms
statutory with common law, by making publication with notice the initial
copyright act and registration and deposit secondary acts necessary for
the completion of the copyright and its protection under the statute.

{Sidenote: Publishing}

The definition of the date of publication (sec. 62) as "the earliest
date when copies of the first authorized edition were placed on sale,
sold, or publicly distributed by the proprietor of the copyright or
under his authority" remedies the vagueness of the previous law and
adopts into the statute court decisions to the effect that acts not by
the authority of the author or proprietor do not constitute publication
in the sense of dedication to the public. In other words, it is made
clear that the right to publish inheres in the author and that he cannot
be divested of it without his consent. This is the fundamental principle
of the new law in the vital matter of protecting the author at the
critical point at which an unpublished work, absolutely his own, becomes
a published work, subject to statute. In this respect the American code
of 1909 comes very close to the acceptance of the right in intellectual
property as a natural and inherent right.

{Sidenote: What constitutes publishing}

As to what constitutes publishing, interpretation by the courts based on
previous law will in many respects be applicable to the new code. A book
which has been sold or leased to subscribers on a contract of restricted
use is none the less published, as was set forth in the opinion by Chief
Judge Parker of the N. Y. Court of Appeals in Jewellers' Mercantile
Agency _v._ Jewellers' Weekly Pub. Co. in 1898, and in the opinion by
Judge Putnam of the U. S. Circuit Court in Massachusetts in Ladd _v._
Oxnard in 1896, both having reference to credit-rating books leased to
subscribers for their individual use.

{Sidenote: "Privately printed" works}

Publication depends upon sale or offer to the public, and it is a
question whether the sale or offer of a copyrightable work, as the
proceedings or publications of a society, to the members of that society
only, constitutes publication, to be passed upon by the courts in view
of the specific facts. A work "privately printed" or with the imprint
"printed but not published," given or even sold by the author to his
friends, and not sold generally by his authority, would probably not be
held to be published; but the courts would probably hold that the sale
of a work, though "privately printed," to merely nominal members of a
nominal society, made up of the purchasers of the work, would constitute
publication and, if without copyright notice, dedication.

{Sidenote: Copying}

As to the right to copy, this word in the broad sense as interpreted by
the courts, covers the duplicating or multiplying of copies within the
stated scope of the statute. It was argued in the mechanical music cases
that the word copy extends to any form or method of duplication by which
the thought of the author can be recorded or conveyed, but, as more
fully stated in the chapter on mechanical music, the U. S. Supreme Court
in White-Smith _v._ Apollo Co. in 1908 upheld the decision below that a
perforated roll is not a _copy_ in fact of staff notation, and thus
limited the statutory use of the word to duplication by similar or
corresponding process. It was for this reason that such specific phrases
as "to make any other version," "to convert," "to arrange or adapt," "to
make transcription or record" were included in the new code, although
these would be included in the broader sense of the right "to copy."

{Sidenote: Vending}

The right to vend covers by a comprehensive word those general rights of
sale through which only can the author obtain remuneration for his work.
The most important question which has arisen in respect to the
application of this word, which is used both in the previous laws and in
the present code, has been as to the use of this exclusive right to
limit the conditions of sale after the original sale from the author or
proprietor as vendor to the immediate vendee. The courts have in general
held that the copyright and patent laws, while creating a legal monopoly
for the author or original proprietor, do not authorize any continuing
control, and have indeed gone so far as to indicate that a sale is
absolute and complete unless limited by special contract within the
principles of common or statutory law of contracts. In the leading case
of Keeler v. Standard Folding Bed Co., the U. S. Supreme Court in 1895,
through Justice Shiras, said:

{Sidenote: Control of sale}

"Upon the doctrine of these cases we think it follows that one who buys
patented articles of manufacture from one authorized to sell them
becomes possessed of an absolute property in such articles, unrestricted
in time or place. Whether a patentee may protect himself and his
assignees by special contracts brought home to the purchaser is not a
question before us and upon which we express no opinion. It is, however,
obvious that such a question would arise as a question of contract, and
not as one under the inherent meaning and effect of the patent laws."

{Sidenote: Specific relation to copyrights: the Macy cases}

This question in specific relation to copyrights again came before the
U. S. Supreme Court in a series of cases, known as the Macy cases,
between Isidor and Nathan Straus doing business as R. H. Macy & Co., on
the one side, and the Bobbs-Merrill Co. and Charles Scribner's Sons as
the respective defendants.

In both cases, the publishers had sought to maintain the retail price of
a book, as a right under the copyright law. The Bobbs-Merrill Co.
copyrighted the "Castaway" May 18, 1904, and immediately below the
copyright notice printed the following in each copy: "The price of this
book at retail is one dollar net. No dealer is licensed to sell it at a
less price, and a sale at a less price will be treated as an
infringement of the copyright."

The Scribners sought to accomplish the same purpose as to their
copyright books by printing in their catalogues, invoices and bills of
goods the following notice: "Copyrighted net books published after May
1, 1901, and copyrighted fiction published after February 1, 1902, are
sold on condition that prices be maintained as provided by the
regulations of the American Publishers' Association."

New dealers were required by the American Publishers' Association, in
consideration of a discount allowed by the publisher in question, to
enter into an agreement as indicated, but this agreement Macy & Co.
refused to accept and they bought books as best they could and sold them
at "cut rates," thus inducing dealers from whom the purchases were made
to violate the agreement with the publishers.

{Sidenote: The Bobbs-Merrill case}

In the leading case of Bobbs-Merrill Co., appellant, _v._ Straus, the
opinion of the U. S. Supreme Court was delivered June 1, 1908, by
Justice Day, who said: "The precise question in this case is, does the
sole right to vend (named in section 4952) secure to the owner of the
copyright the right, after a sale of the book to a purchaser, to
restrict future sales of the book at retail to the right to sell it at a
certain price per copy, because of a notice in the book that a sale at a
different price will be treated as an infringement, which notice has
been brought home to one undertaking to sell for less than the named
sum? We do not think the statute can be given such a construction, and
it is to be remembered that this is purely a question of statutory
construction. There is no claim in this case of contract limitation, nor
license agreement controlling the subsequent sales of the book. In our
view the copyright statutes, while protecting the owner of the copyright
in his right to multiply and sell his production, do not create the
right to impose by notice, such as is disclosed in this case, a
limitation at which the book shall be sold at retail by future
purchasers, with whom there is no privity of contract."

{Sidenote: The Scribner case}

In the Scribner case the decision delivered on the same day by the same
justice, upheld the lower courts in their view, "that there was nothing
in any of the notices of a claim of right or reservation under the
copyright law," and "that independent of statutory law" the question of
relief in equity was not open to the federal courts because there was no
diversity of citizenship nor claim above $2000 "requisite to confer
jurisdiction of questions of rights independent of the copyright
statutes." On the allegations of the bill as to alleged contributory
infringement by inducing dealers to sell in violation of agreement, on
which the lower courts held that complainants had not proved an
agreement based upon their printed notice, the Supreme Court declined to
review the question of fact.

{Sidenote: English underselling case}

In the English case of Larby _v._ Love, in 1910, however, Justice
Bucknill in the King's Bench held the defendant liable for damages for
the sale of certain maps to undersellers in disregard of prohibitions
specified in the bill of sale.

{Sidenote: Suits under state law}

The Macy cases included suits in the New York State courts by Straus
_v._ American Publishers' Association _et al._, claiming that the action
of the publishers in endeavoring to maintain rates constituted a
conspiracy in restraint of trade contrary to the statutes. The N. Y.
Court of Appeals held, through Chief Judge Parker, that the agreements
would have been free from legal objections if confined solely to
copyright publications, but were contrary to the statute in affecting
the right of a dealer to sell books not copyrighted at the price he
chooses. The copyright side of the question was again pressed in the
lower courts and reached the Court of Appeals a second time in 1908,
when it was passed upon by a divided court, four to three, Judge Gray
for the court declining to review its previous action. The dissenting
judges, through Judge Bartlett, held that the decision of the U. S.
Supreme Court in the Bobbs-Merrill case did apply in the current case
and that the State Court of Appeals should therefore conform its
decision to the finding of the federal Supreme Court. The question has
been brought into the federal courts in a new series of suits, and it
has yet to be finally settled by the U. S. Supreme Court, whether the
legal monopoly conferred by the copyright statute safeguards the
copyright proprietor against certain provisions of the anti-trust laws,
state or national.

{Sidenote: Translating}

{Sidenote: "Other version"}

The right "to translate into other languages or dialects" is
strengthened in the new American code by the addition of the phrase "or
to make any other version thereof," and the author is thus given
exclusive right and entire control as to translation of his original
work by himself or others, without specific reservation of rights except
as implied and included in the general copyright notice. The broad
phrase "make any other version thereof" may cover not only translation
into another language, but into another literary form as from prose into
poetry or _vice versa_. No case involving construction of this phrase
seems yet to have arisen to be decided by the courts; but the author of
a narrative poem, like Owen Meredith's "Lucile" or Tennyson's "Enoch
Arden," could probably prevent the transformation of his poetical work
into equivalent prose; and a novelist would have probably a like
protection in case of an attempt to duplicate or transform his story as
a narrative poem. This view is confirmed by the analogous specific
protection of the right to dramatize a work or convert a drama into
non-dramatic form.

{Sidenote: Translating term}

The exclusive right "to translate the copyrighted work into other
languages or dialects, or make any other version thereof, if it be a
literary work; to dramatize it if it be a non-dramatic work" are granted
by the act for the same period as the term of original copyright and the
renewal term, instead of for a shorter period, as ten years, as is the
case in certain foreign legislation. The right to translate or to
dramatize is separate from the right to copyright a translation or
dramatization, as is shown by the fact that a translation or
dramatization can be separately copyrighted for a term extending from
its own date of publication and therefore possibly beyond the copyright
term of the original work, though on the expiration of the primary
copyright any one else may make a translation or dramatization despite
the continuing existence of the copyright in the authorized translation
or dramatization. These subjects are more specifically discussed for
translations under the subject-matter of copyright and for
dramatizations under dramatic and musical copyright.

{Sidenote: Oral delivery}

The exclusive right to deliver orally addresses and similar productions
is now specifically included in the American law, as in the laws of some
other countries, and probably involves the right to register, before
publication, any literary production intended for oral delivery before
it is printed in a book or periodical. Thus if Mr. Cable desires to
include in his readings, especially if in public for profit, chapters
from an unpublished novel, or a poet desires to protect his copyright in
a poem which he publicly recites, it may be desirable that he should
register such unpublished work under the provisions of the act for that
purpose; although it is a generally accepted doctrine that oral delivery
does not constitute publication, and that the matter orally delivered
may thus be protected at common law.

{Sidenote: "Publicly and for profit"}

It should be noted that in the case of a lecture or other work for oral
delivery and of a musical composition, the exclusive right is given for
its delivery or performance "publicly and for profit," and in the case
of a drama, "publicly," the words for profit being, probably by
inadvertence, omitted. There is some question, therefore, whether a
copyrighted lecture, drama, or musical composition can be given without
consent of the author privately, or, except in the case of a drama,
gratuitously before the public. In view of the special exception (sec.
28) exempting oratorios, etc., performed for charitable or educational
purposes and not for profit, from authorization or payment, as well as
on general principles of construction, it would seem probable that the
courts would protect the author of a lecture, drama, or musical
composition, except in such instances as a private rendering in a
private house, to which there was not public admission and at which no
fee was charged or collection taken. The cases bearing on this point are
given in the later chapter on dramatic and musical copyright.

{Sidenote: Material and immaterial property}

The American code adopts into the law an important distinction as
between the property in the material and the immaterial rights, hitherto
somewhat uncertain, in the following provision (sec. 41): "That the
copyright is distinct from the property in the material object
copyrighted, and the sale, or conveyance, by gift or otherwise, of the
material object shall not of itself constitute a transfer of the
copyright, nor shall the assignment of the copyright constitute a
transfer of the title to the material object; but nothing in this Act
shall be deemed to forbid, prevent, or restrict the transfer of any copy
of a copyrighted work the possession of which has been lawfully
obtained."

The negative provision in this section was inserted in the new copyright
law apparently to differentiate it from patent law with the intent of
preventing the proprietor of a copyrighted work from controlling the
conditions of sale after copies had left his possession. It is doubtful
what, if any, effect this provision may have, as the phrase "lawfully
obtained" would scarcely have the result of limiting and annulling
contractual conditions of sale. The innocent purchase of a stolen book
would not relieve the purchaser from the necessity of returning the
stolen property to its proper owner, although as far as intent,
knowledge, and payment are concerned, he would have "lawfully obtained"
it.

{Sidenote: Schemes not copyrightable}

The scope of copyright cannot be extended to cover a business or other
scheme described in a copyrighted book, as was held in 1906 in Burk _v_.
Johnson by the Circuit Court of Appeals in denying relief under
copyright protection to the originator of a mutual burial association
who copyrighted the articles of association.

{Sidenote: The new British code}

The new British measure defines copyright to mean "the sole right to
produce or reproduce the work or any substantial part thereof in any
material form whatsoever and in any language," thus assuring rights of
translation hitherto imperfect or doubtful; "to perform, or in the case
of a lecture to deliver, the work or any substantial part thereof in
public; if the work is unpublished, to publish the work"; and
specifically includes the sole right of dramatization (from an
"artistic," as well as other non-dramatic work), novelization, and
reproduction by mechanical means (though with compulsory license
provision as to reproduced music). A copyright may be assigned or
licensed "either wholly or partially, and either generally or subject to
limitations to any particular country, and either for the whole term of
the copyright or for any part thereof."

"Copyright or any similar right in any literary dramatic musical or
artistic work, whether published or unpublished," is expressly denied
"otherwise than under and in accordance with the provisions of this Act"
or other statutory enactment; and thus common law seems to be totally
abrogated. Hitherto common law property in an unpublished work has been
absolute and co-existed with statutory remedies up to publication, as
was strongly upheld in 1908 in Mansell _v_. Valley Printing Co. in the
English Court of Appeal. As to published works, the new code continues
the settled law reiterated as late as 1910 in Monckton _v_. The
Gramaphone Co., where Justice Joyce in the Chancery Division denied the
common law claim of the author of a song printed with prohibition of
mechanical production, on the ground that after publication there was no
copyright except as given by statute.

{Sidenote: Foreign statutes}

The statutes of foreign countries are in general of similar scope,
though with variations of extent and phraseology in the several
countries. The broadest seems to be that of Siam, above cited,
translating common law rights into statutory privilege, though that
country also contradictorily limits copyright in books by a
manufacturing clause. Spain specifically protects works produced or
published by "any kind of impression or reproduction known now or
subsequently invented," as elsewhere quoted. France specifically gives
an author right to assign his property in whole or in part--a right
which is probably included in other countries under the general
construction of statutory rights in property.

{Sidenote: International provisions}

The international copyright convention, as modified at Berlin, does not
define the scope of copyright, but insures for authors the enjoyment of
such rights as the domestic laws accord to natives; but in its several
articles it makes specific provision as to representation, translation,
adaptation, mechanical reproduction, etc., as set forth in the chapter
on international copyright conventions.

Common law, or a crude equivalent for it, as enforced by the courts,
seems to extend copyright protection, in the absence of specific
legislation, in Montenegro, Egypt and Liberia, Honduras, the Dominican
Republic, and Uruguay, as formerly in Argentina.



VI

SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE COPYRIGHTED


{Sidenote: Subject-matter in general}

The subject-matter of copyright should include, in the nature of things,
those products of invention, creations of the human brain, which are
realized and utilized immaterially through material records, and not, as
in the case of patents, materially through the material itself.
Copyrightable works, in brief, are those which appeal from the
imagination to the imagination, or in which intellectual labor combines
immaterial product into new form. What may be copyrighted specifically
and practically depends, under present conditions of law, upon the
statutory provisions, national or international, of the several nations
of the world.

{Sidenote: Classification}

The new American code gives the following classification of
copyrightable works:

"(Sec. 5.) That the application for registration shall specify to which
of the following classes the work in which copyright is claimed belongs:

"(a) Books, including composite and cyclopædic works, directories,
gazetteers, and other compilations;

"(b) Periodicals, including newspapers;

"(c) Lectures, sermons, addresses, prepared for oral delivery;

"(d) Dramatic or dramatico-musical compositions;

"(e) Musical compositions;

"(f) Maps;

"(g) Works of art; models or designs for works of art;

"(h) Reproductions of a work of art;

"(i) Drawings or plastic works of a scientific or technical character;

"(j) Photographs;

"(k) Prints and pictorial illustrations:

"_Provided, nevertheless_, That the above specifications shall not be
held to limit the subject-matter of copyright as defined in section four
of this Act, nor shall any error in classification invalidate or impair
the copyright protection secured under this Act."

{Sidenote: Prints and labels excluded}

Prints or labels "not connected with the fine arts," but "designed to be
used for any other articles of manufacture," are subject only to
registration in the Patent Office in accordance with the act of June 18,
1874.

{Sidenote: All the writings of an author}

It is enacted (sec. 4): "That the works for which copyright may be
secured under this Act shall include all the writings of an author,"
thus linking the phraseology of the law with the provision in the
Constitution of the United States in which the word "writings" is used,
with the effect of construing that word by the classification above
cited.

{Sidenote: Component parts}

It is also enacted (sec. 3): "That the copyright provided by this Act
shall protect all the copyrightable component parts of the work
copyrighted, and all matter therein in which copyright is already
subsisting, but without extending the duration or scope of such
copyright. The copyright upon composite works or periodicals shall give
to the proprietor thereof all the rights in respect thereto which he
would have if each part were individually copyrighted under this Act."

{Sidenote: Compilations, new editions, etc.}

It is also enacted (sec. 6): "That compilations or abridgments,
adaptations, arrangements, dramatizations, translations, or other
versions of works in the public domain, or of copyrighted works when
produced with the consent of the proprietor of the copyright in such
works, or works republished with new matter, shall be regarded as new
works subject to copyright under the provisions of this Act; but the
publication of any such new works shall not affect the force or validity
of any subsisting copyright upon the matter employed or any part
thereof, or be construed to imply an exclusive right to such use of the
original works, or to secure or extend copyright in such original
works."

{Sidenote: Non-copyrightable works}

The provisions of the law regarding the subject-matter of copyright are
completed by the negative provision:

"(Sec. 7.) That no copyright shall subsist in the original text of any
work which is in the public domain, or in any work which was published
in this country or any foreign country prior to the going into effect of
this Act and has not been already copyrighted in the United States, or
in any publication of the United States Government, or any reprint, in
whole or in part, thereof: _Provided, however_, That the publication or
republication by the Government, either separately or in a public
document, of any material in which copyright is subsisting shall not be
taken to cause any abridgment or annulment of the copyright or to
authorize any use or appropriation of such copyright material without
the consent of the copyright proprietor."

{Sidenote: Government use}

It is not to be inferred from the provision as to Government
publications, that the United States has itself a right to use copyright
material without consent of the copyright proprietor. The sovereignty of
the nation is not to transgress the rights of private property, unless
in the necessary exercise of war or police powers, as the sovereign
state cannot take land over which it is theoretically sovereign from a
private owner except for public purposes and then only by condemnation
proceedings at law and with fair remuneration to the proprietor. No
right of eminent domain in respect to copyrights is asserted by the
United States, and the provision means only that material, otherwise
copyrightable, furnished by a public officer or otherwise to the
Government, becoming the property of the Government, is put freely at
the service of the people.

{Sidenote: "Author" and "writing" definitions}

The constitutional provision is thus given the broadest interpretation
in the act. In the narrow sense the dictionaries define "author" as "one
who composes or writes a _book_" (Webster), and "writing" variously as
"a record made by _hand_," "a production of the _pen_," "any expression
of thought in _visible_ words" (Century); "anything expressed in
_letters_" (Webster, Stormonth, Standard); "a written paper," "a legal
instrument" (Johnson); "a literary production" (Chambers); "forming by
the hand letters or characters on paper or other suitable substance"
(Bouvier's Law Dictionary); "words made _legible_ by any device," "a
document, whether manuscript or printed, as opposed to mere spoken
words" (Rapalje and Lawrence, Law Dict.); "expression of ideas by
visible letters" (Anderson's Dict. of Law). For years Massachusetts
voters cast a handwriting ballot, until the courts held that a printed
ballot fulfilled the "written ballot" requirement of the Massachusetts
constitution. But in the wider sense an author is "a creator, an
originator" (Webster, Standard), and a writing is the record or
expression of a thought or idea.

{Sidenote: Interpretation by Congress and courts}

Congress, upheld by the courts, had specifically included (law of 1870)
under "writings" in the Constitution a "statue," "statuary," "model,"
without requiring the artist to make a preliminary sketch (if that be
specifically a writing)--otherwise, as sculptors are not "inventors"
making "discoveries," they could not be protected at all; and in other
countries protection has been extended to oral delivery of an address
presumably but not necessarily written. It might be claimed, under a
restrictive interpretation of the Constitution, that only works
specifically relating to "science and useful arts" might be protected,
although literature and the fine arts are admittedly especial subjects
of copyright. While it is for the judiciary and not for the legislature
to construe or interpret the Constitution, the right of Congress to pass
laws based upon its understanding of the Constitution, subject to the
final decision of the federal courts, has not been challenged. And the
code of 1909 by its classification (sec. 5) and its inclusive clause
(sec. 4) is most comprehensive in this respect.

{Sidenote: Supreme Court decisions}

The U. S. Supreme Court, in 1884, in the decision of Burrow-Giles Lith.
Co. _v._ Sarony, extending the principles of the copyright act to cover
photographs, said through Justice Miller: "By 'writings' is meant the
literary productions of those authors, and Congress very properly has
declared these to include all forms of writings, printing, engraving,
etching, etc., by which the ideas in the mind of the author are given
visible expression. The only reason why photographs were not included in
the extended list of 1802 is probably that they did not exist, as
photography as an art was then unknown." It seems evident that the
phrase "visible expression" as used in this decision was intended to
give a broad definition and not to narrow the definition by the
exclusion, for instance, of "audible expression," as otherwise the
_performance_ of a drama or of a musical composition could not be
included under copyright protection. This view is confirmed by the later
decision of the same court, in 1899, in Holmes _v._ Hurst: "It is the
intellectual production of the author which the copyright protects, and
not the particular form which such production ultimately takes; and the
word 'book' is not to be understood in its technical sense as a bound
volume, but any species of publication which the author selects to
embody his literary product."

{Sidenote: Originality and merit}

The courts are disposed to extend copyright to any work involving
intellectual labor or brain skill, without emphasizing originality or
literary merit. In the important case of Walter _v._ Lane, in which a
_verbatim_ report of Lord Rosebery's speeches was protected, by decision
of the House of Lords, in 1900, Lord Chancellor Halsbury said: "Although
I think in these compositions (_i. e._ the work of the stenographer)
there is literary merit and intellectual labor, yet the statute seems to
me to require neither--nor originality either in thought or language ...
the right in my view is given by the statute to the first producer of a
book, whether that book be wise or foolish, accurate or inaccurate, of
literary merit, or of no merit whatever."

{Sidenote: "Book" definitions}

The word "book" covers the great body of copyright property, and has
been many times the subject of judicial construction giving the most
comprehensive meaning to the term. The English judges early held that
protection "could not depend upon the form of the publication"; "that a
composition on a single sheet might well be a book within the meaning of
the legislature"; and that "any composition, whether large or small, is
a book within the meaning of this act." The English law of 1842
afterward specifically construed the word "book" "to mean and include
every volume, part or division of a volume, pamphlet, sheet of
letterpress, sheet of music, map, chart or plan, separately published."
The law of the United States makes no definition of the term, except by
specifically including as books "composite and cyclopædic works,
directories, gazetteers, and other compilations"; but our judges have
agreed with the English view, Judge Thompson holding, in 1828, in
Clayton _v._ Stone, that a "book" may be printed "only on one sheet,"
and that "the literary property intended to be protected by the Act is
not to be determined by the size, form or shape ... but by the
subject-matter," and Judge Leavitt, in 1862, in Drury v. Ewing, that a
diagram for cutting dresses, with directions, printed on a single sheet,
being "the product of thought and mental toil," was a "book" within the
benefit of the law.

{Sidenote: Inclusions adjudicated}

In fact, though all English and American statutes have been avowedly for
"the encouragement of learning" and "the progress of science and useful
arts," the courts have construed the laws to cover in the widest sense
any "useful book." The courts have indeed denied copyright protection
only to works having absolutely no literary quality, such as
advertisements (unless they contain original literary matter) and
advertising cuts, labels, blank books, or blank forms. Even booksellers'
and other trade catalogues, having descriptive notes or distinctive
arrangement and combination, can be copyrighted. Compilations of
existing materials, from common sources, arranged and combined in an
original and useful form, receive the same protection as wholly original
matter. Drone schedules English or American judicial constructions
extending this principle to: (1) general miscellaneous compilations; (2)
annotations consisting of common materials; (3) dictionaries; (4) books
of chronology; (5) gazetteers; (6) itineraries, road and guide books;
(7) directories; (8) maps and charts; (9) calendars; (10) catalogues;
(11) mathematical tables; (12) a list of hounds; (13) abstracts of
titles to lands; and collections of (14) statistics, (15) statutory
forms, (16) recipes, and (17) designs--several of which classes are now
specifically included in the new American statute. Later decisions have
confirmed several of these categories and have specified also (18)
trotting records; (19) racing charts; (20) newspaper reports of public
speeches; (21) telegraphic codes; (22) mining reports; (23) a
tradesman's alphabetical list of wares; (24) a list of public documents;
(25) mathematical calculations; (26) legal forms; (27) an application
form for membership; (28) complications of railroad time-tables; (29)
commercial circulars, protected by a Canadian decision; (30) school
registers, and (31) stud book list of horses.

{Sidenote: Exclusions adjudicated}

On the other hand, the courts have declined to include as proper
subjects of copyright (a) methods or plans, as for compiling
credit-ratings or systems, as in the case of (b) shorthand, (c) trading
stamps or coupons as described in a copyrighted advertising pamphlet, or
(d) of letter-file indexes; (e) a sleeve pattern chart; (f) the face of
a barometer; (g) a railway ticket designed for punching; (h) a day's
sporting tips; (i) blank books; or (j) blank forms, as a cricket
score-card; and (k) monograms.

{Sidenote: Inclusions defined}

In the new Rules and Regulations of the Copyright Office promulgated as
approved by the Librarian of Congress in 1910 as Bulletin No. 15, it is
said as to books:

"(4, _a_) _Books._--This term includes all printed literary works
(except dramatic compositions) whether published in the ordinary shape
of a book or pamphlet, or printed as a leaflet, card, or single page.
The term 'book' as used in the law includes tabulated forms of
information, frequently called charts; tables of figures showing the
results of mathematical computations such as logarithmic tables;
interest, cost, and wage tables, etc., single poems, and the words of a
song when printed and published without music; librettos; descriptions
of moving pictures or spectacles; encyclopædias; catalogues;
directories; gazetteers and similar compilations; circulars or folders
containing information in the form of reading matter other than mere
lists of articles, names and addresses, and literary contributions to
periodicals or newspapers."

{Sidenote: Exclusions defined}

On the other hand, definitions are made negatively that:

"(5) The term 'book' can not be applied to--

"Blank books for use in business or in carrying out any system of
transacting affairs, such as record books, account books, memorandum
books, diaries or journals, bank deposit and check books; forms of
contracts or leases which do not contain original copyrightable matter;
coupons; forms for use in commercial, legal, or financial transactions,
which are wholly or partly blank and whose value lies in their
usefulness and not in their merit as literary compositions.

"Directions on scales, or dials, or mathematical or other instruments;
puzzles; games; rebuses; labels; wrappers; formulæ on boxes, bottles,
and other receptacles of articles for sale or meant to accompany such
articles.

"Advertisements or catalogues which merely set forth the names, prices,
and places where articles are for sale.

"Prefaces or other introductory matter to works not themselves entitled
to copyright protection, such as blank books.

"Calendars are not capable of registration as such, but if they contain
copyrightable reading matter or pictures they may be registered either
as 'books' or as 'prints' according to the nature of the copyrightable
matter."

The Rules also make the following negative definitions:

"(12) No copyright exists in toys, games, dolls, advertising novelties,
instruments or tools of any kind, glassware, embroideries, garments,
laces, woven fabrics, or any similar articles."

The definition of other classes of subject-matter given in the new Rules
and Regulations of the Copyright Office, including that of maps, will be
found in the chapters on dramatic and musical copyright and on artistic
copyright.

{Sidenote: Blank books}

In the case of Everson _v._ Young, then Librarian of Congress, Judge
Cole, of the Supreme Court of the District of Columbia, in 1889, refused
a mandamus against the copyright officer while admitting that "the
librarian had no discretion" on the ground that mandamus "will not be
used to order a vain thing to be done" and that a blank book "containing
not a single English sentence" is not a subject of copyright.

"The copyright statutes," as is said in Circular Letter no. 32 of the
Copyright Office, "in designating the classes of articles which may be
registered in this office do not mention blank forms or blank books. The
United States courts which have jurisdiction in cases arising under the
copyright laws have held that blank forms or blank books or similar
articles _for use in themselves_ are not subject to copyright, and hence
are not registrable in this office. A bill was introduced in Congress in
1904 proposing to extend the protection of the copyright law to
vouchers, certificates, or other business forms, wholly or partly
printed. But the measure was not favorably acted upon and did not become
law." This exclusion does not refer to such publications as an insurance
policy or a legal document, on which blank spaces are to be filled in,
which are accepted as proper subject-matter for copyright by the
Copyright Office.

{Sidenote: Combinations and arrangements}

The copyright under certain categories above scheduled may be in the
combination and arrangement only, or it may be also in any original
material included with other material. Quantity is not an essential
element in copyright so much as "substantial importance." An English
court protected a passage of only sixty words.

{Sidenote: Advertisements}

In respect to advertisements and advertising matter as such, the new
American code is silent, and court decisions, mostly English, have been
contradictory. In 1863 Vice-Chancellor Page Wood, in Hotten _v._ Arthur,
"found no difficulty" in deciding that a catalogue of old books was a
subject of copyright "notwithstanding that the catalogues were for the
purpose of advertising the plaintiffs' stock-in-trade, and were not in
themselves offered for sale"; but in 1872 Lord Romilly, in Cobbett _v._
Woodward, made an absolutely contrary decision, saying: "But at the
last, it comes round to this, that there is no copyright in an
advertisement. If you copy the advertisement of another, you do him no
wrong in doing so, unless you lead the public to believe that you sell
the articles of the person whose advertisement you copy." This last
decision was definitely overruled and in 1882, in Maple _v._ Junior Army
& Navy Stores, the English Court of Appeal, in protecting an advertising
catalogue consisting mostly of engravings of furniture, said through
Justice Jessel: "The case which has done all the mischief is Cobbett
_v._ Woodward.... I think that is not law. I am not aware that the use
to which a proprietor puts his book makes any difference in his rights."
 In 1906, in Davis _v._ Benjamin, the Chancery Division held a sheet of
advertising illustrations with headlines and prices a book.

{Sidenote: Undistinctive advertising not protectable}

An advertisement _per se_ of an ordinary character, the courts may
decline to protect, either on behalf of the advertiser or of the
publisher of the periodical in which it appears; thus possibly ordinary
advertisements might be copied by another paper, to give an inflated
impression of its advertising patronage unless enjoined for intent to
deceive. On the other hand, characteristic advertisements, as those for
which department stores pay large sums to advertisement writers, could
doubtless be copyrighted to prevent their use by rival firms, though the
advertiser would scarcely be interested in preventing the wide diffusion
of his advertisement with his name by its gratuitous publication
elsewhere. Some street-car advertisements, however, bear copyright
notices. Whether the proprietor of a copyrighted periodical could
prevent the use of a copyrightable advertisement not protected by
specific copyright, in a rival newspaper, would be questionable, though
a publisher might be granted an injunction for the combination or
arrangement of copyrightable advertisements in his periodical. In 1892,
in Lamb _v._ Evans, Lord Justice Lindley, in the English Court of
Appeal, said: "I do not see myself the difficulty in the publisher's
having a copyright in a sheet of advertisements. I do see a difficulty
in his having a copyright in one advertisement, because, as Mr. Justice
Chitty pointed out, that might prevent the advertiser from republishing
his advertisements in another paper, which is absurd." An advertisement
appearing in several publications, some of them not copyrighted, could
only be protected in these latter by specific copyright notice, even
though covered in the copyrighted periodicals as a component part. The
Copyright Office can make no clear line of demarcation in advance as to
advertisements, but it has declined in a recent instance to accept for
registry recipes printed on tin and inserted in packages of flour to
advertise the flour, which could scarcely be accepted as a "book" or
other copyrightable matter.

{Sidenote: New editions}

New editions are protected under the American code as new works (sec.
6), to the extent that they include new material; and this is in accord
with the whole trend of court decisions. In 1852 Vice-Chancellor
Kindersley stated the doctrine that "if a man prints a second edition,
not being a mere reprint of the first edition, but containing
considerable and material alterations and additions, _quoad_ those, it
is a new work." So in 1870, in Black _v._ Murray & Son, Lockhart's
edition of Scott's "Border Minstrelsy" was protected, on Lord President
Inglis' decision, to the full extent of the notes: "Questions of great
nicety and difficulty may arise as to how far a new edition of a work is
a proper subject of copyright at all; but that must always depend upon
circumstances. A new edition of a book may be a mere reprint of an old
edition, and plainly that would not entitle the author to a new term of
copyright running from the date of the new edition. On the other hand,
the new edition of a book may be so enlarged and improved as to
constitute in reality a new work, and that just as clearly will entitle
the author to a copyright running from the date of the new edition." A
few colorable alterations or unimportant notes may not justify a new
copyright; a Scotch justice, however, contended that Walter Scott's
change of a single word in "Glenallan's Earl" authorized a copyright for
the new edition, though another law lord differed, and the case was
decided on other grounds. It is doubtful indeed whether there can be
protection of a single word, a question which arose in the _Belgravia_
case, unless having association in the public mind as a trade-mark. In
any event, the copyright on a new edition, whether made by rewriting,
extending, condensing, annotating, or otherwise altering, runs
independently of the term of the original or any other edition, covers
only the new parts, and cannot prevent the issue by others of the
original or any other edition on which copyright has expired. This is
made entirely clear in the new code (sec. 6).

{Sidenote: Copyright comprehensive}

"A book must include every part of the book; it must include every
print, design, or engraving which forms part of the book, as well as the
letterpress therein, which is another part of it," according to the
ruling decision of Vice-Chancellor Parker, in 1852, in the English case
of Bogue _v._ Houlston. To the same effect Drone says: "The copyright
protects the whole and all the parts and contents of a book: when the
book comprises a number of independent compositions, each of the latter
is as fully protected as the whole." The copyright under the new law
protects (sec. 3) "all the copyrightable component parts of the work
copyrighted." The practice of some publishers in copyrighting a magazine
and also specific articles or engravings seems, therefore, a work of
doubtful expediency. The new law specifically gives to the proprietor of
"composite works or periodicals" (sec. 3) "all the rights in respect
thereto which he would have if each part were individually copyrighted."

{Sidenote: Non-copyrightable parts excepted}

On the other hand, copyright cannot extend to any part of a book not
subject in itself to copyright, even under the old law, and the new law
(sec. 3) is perfectly plain. The general copyright is not, however,
vitiated as to copyrightable portions by its seeming to cover
non-copyrightable portions, as was held by Lord Kenyon, in 1801, in Cary
_v._ Longman. But when copyright is claimed on a work partly composed of
uncopyrightable matter the courts may require the claimant, on
interrogatories, to designate which parts are and which are not
original. "If the parts cannot be separated," says Drone, "it would seem
that copyright will not vest in any of it." The new code is to the same
effect.

{Sidenote: Book illustrations}

The application of these principles to the protection of a "new edition"
which is new only with respect to added illustrations, is very simple.
It is only the new illustrations which can be copyrighted, and it is
matter for question whether the endeavor to protect an edition of
unaltered text by a general copyright notice which really covers only a
few added illustrations would not be a false use of the copyright
notice. A proper copyright notice on an illustrated book will, however,
protect the illustrations against indirect as well as direct
reproduction; thus in 1908 in Harper _v._ Kalem, Judge Lacombe in the U.
S. Circuit Court in New York protected certain illustrations in "Ben
Hur" against their reproduction in moving pictures.

{Sidenote: Translations}

In respect to translations, the new American law is specific, not only
in its mention of "translations" (sec. 6), but in giving (sec. 1, b) the
exclusive right "to translate the copyrighted work into other languages
or dialects, or make any other version thereof, if it be a literary
work." The early American precedent was the case of "Uncle Tom's cabin,"
in 1853, in which Mrs. Stowe had copyrighted not only the original work,
but a German translation which she had provided; Justice Grier in the U.
S. Circuit Court held that she could not recover against one Thomas who
was issuing another German translation, since it was not "_copies_ of
her _book_." This case was previous to the statute permitting authors to
reserve the right of translation, and the new code as above cited fully
protects translations. The author of a copyrighted work thus has the
exclusive right to translate his work, or license its translation, into
any other language, and under such a license the translator with the
consent of the author would have the right to copyright his translation.
Where the author employs a translator for hire, the copyright in the
translation may be secured by the author of the original work, but under
ordinary circumstances the copyright in the translation would be secured
by or on behalf of the translator. In case of contest on this point, the
issue would be a question of contract, and in the absence of contract or
specific assent the courts would doubtless base their decisions on the
circumstances of the case so far as they could be held to imply
contract. The inclusion of the notice of copyright of the original work
on a translation, without specific copyright of the translation itself,
would be held, it seems probable, to protect the translation under the
author's original copyright; but this would limit the copyright term on
the translation to the copyright term of the original work, and for this
and other reasons a specific copyright on each translation is desirable,
in which case the notice of copyright of the original work need not be
given on the translation.

{Sidenote: Translator's rights}

In the case of the translation of a copyright work, the author of the
original work has the right to prevent other translations, but the
translator has no such right to prevent translation by another
translator except as exclusive right to translate is conveyed or implied
to him by the author of the original work. A work in the public domain,
as a non-copyright work or a work on which copyright has expired, may be
translated by any one and the translation copyrighted, but such
translator would not have the right to prevent translation by another
translator.

{Sidenote: English practice}

In England, while the right of translation may be reserved under the
international copyright act by notice on the title-page, an English
author could reserve his right of translation only by providing such
translation, but the new code gives the full right.

{Sidenote: Translations in international relations}

The American provisions as to translations apply with especial
importance to international relations. "The original text of a book of
foreign origin in a language or languages other than English" is
copyrightable in America without manufacture here; and such a work, duly
copyrighted, can only be translated into English or any other language
by authority of the foreign author or his assigns, and such translation
in English or any other language can be copyrighted only when
manufactured in this country as provided in the act. If the original
text of a foreign work is not duly copyrighted under the American law,
then translation is open to any one and copyright can be secured only
for the particular translation copyrighted, as above stated, and this
cannot prevent independent translation into the same or any other
language. Thus, a German original duly copyrighted may not be translated
into English, French, or any other language without authority of the
copyright proprietor, nor can an English translation be made, for
instance, from a French translation of the copyrighted work; but any
number of translations of the copyrighted German work into English or
any other language may be separately copyrighted under the American law,
subject to the manufacturing clause, if duly authorized by the copyright
proprietor, and each translator could only prevent the copying of his
particular translation or the translation of his own version into
another language.

{Sidenote: Foreign translators}

A translation can be copyrighted by a translator only in case he is a
citizen of a country with which the United States has copyright
relations or is a resident of this country; thus a Swedish translation
by a citizen of Sweden not resident in the United States could not be
copyrighted unless the translator had been "employed for hire" by the
author or proprietor of the original copyrighted work. If the entire
copyright of the original work had been sold by the author to a citizen
of Sweden, not a resident in the United States, it would seem to follow
that the latter could not copyright a translation though he might retain
the right to prevent unauthorized translation under the general
copyright which he had purchased. In the case of an authorized
independent translation made by a Swedish citizen not resident here, the
general notice of copyright of the original work might be utilized to
protect the translation, but in such case copies not manufactured in the
United States could not be imported into this country; while if such
authorized translation bore no copyright notice and were imported into
the United States by the author or with his consent, it is probable that
this translation, but not the original work or another translation from
either, would be freed from copyright protection.

{Sidenote: Abridgments}

In respect to abridgments, these are specifically mentioned (sec. 6) as
copyrightable works, and by inference from this clause and the provision
(sec. 1) giving an author the exclusive right to "make any other
version," the author or proprietor of a literary work may prevent
abridgment of his work. The courts had held to precedents which the best
writers, such as Curtis, Drone and Copinger, declare to be contradictory
to the true principles of copyright law. In 1740 Lord Hardwicke,
deciding against a mere reprint, "colorably shortened only," of Sir
Matthew Hale's "Pleas of the Crown," declared that he would not restrain
"a real and fair abridgment," and in 1774 Lord Chancellor Apsley, after
consultation with Blackstone, held that an abridgment of Hawkesworth's
"Voyages," involving understanding and skill, was not plagiarism or a
copyright wrong, but "an allowable and meritorious work." In the leading
American case of Story's "Commentaries," Story v. Holcombe, in 1847, in
the U. S. Supreme Court, Justice McLean, while expressing his own
opinion that "an abridgment, if fairly made, contains the principle of
the original work, and this constitutes its value," added, "but a
contrary doctrine has long been established in England ... and in this
country the same doctrine has prevailed. I am, therefore, bound by
precedent, and I yield to it in this instance, more as a principle of
law than a rule of reason or justice." Similarly, in Lawrence v. Dana,
in 1869, Judge Clifford, in the U. S. Circuit Court, declared that "an
abridgment ought to be regarded as an infringement ... but the opposite
doctrine has been too long established to be considered open to
controversy." The language of the new code frees the courts from these
precedents and settles the American law.

{Sidenote: Compilations}

In respect to compilations, these are protected by specific mention
(sec. 6) in the new law, and also by the classification as books (sec.
5, a) of "composite and cyclopædic works, directories, gazetteers, and
other compilations." Compilations can be protected even if consisting
solely of non-copyright material, "because of the originality,
arrangement, selection, abridgment, or amplification of such simple
material," as stated in the Scotch Court of Session, in the case of
Lennie v. Pillans in 1843, with which later English and American
decisions are in accord.

{Sidenote: Collections}

Collections are copyrightable as compilations or otherwise, and where
the use of copyrighted poems or other copyright material is permitted,
these are protected by general copyright notice on the collection.
Permission to use a copyrighted poem, for instance, in a specified
collection does not grant a license to use it in other form, though it
could be used in a combination of such collections. In 1896, in Gabriel
_v._ McCabe, Judge Grosscup in the U. S. Circuit Court in Illinois held
that the licensor could not prevent the use of a song licensed for a
particular collection in a combination of this collection in another
collection or in an abridged edition of the collection, though an
"abridgment" involving a reprint of the song by itself would have been
an unfair use of the license.

{Sidenote: Titles}

As to titles, which are not mentioned in the new code, both English and
American court decisions are broadly and generally, though with some
exceptions, to the effect that there is no copyright protection for the
title of a book _per se_, but it may be considered an essential part of
the book. Judge Shepley held, in 1872, in his elaborate discussion of
the question of titles in Osgood _v._ Allen as to the periodical _Our
Young Folks_, that "the right secured is the property in the literary
composition--the product of the mind and genius of the author--and not
in the name or title given to it. The title does not necessarily involve
any literary composition; it may not be, and certainly the statute does
not require that it should be, the product of the author's mind.... It
is a mere appendage, which only identifies, and frequently does not in
any way describe, the literary composition itself.... If there were no
piracy of the copyrighted book there would be no remedy ... for the use
of a title which could not be copyrighted independently of the book."
Judge Lacombe accepted this view in his decision of the "Trilby" case,
cited beyond.

{Sidenote: Changed titles}

Conversely, the publication of a copyrighted work under a changed title,
with the original notice of copyright, would probably not invalidate the
copyright, though it would make identification more difficult and
prevent the copyright certificate being _prima facie_ proof; and change
of title is a practice altogether reprehensible. A new copyright of the
same book changed only in title, with a new copyright notice of later
date, could scarcely be construed as a new edition and in the absence of
the original copyright notice the copyright might thus be abandoned or
forfeited and the work be dedicated to the public.

{Sidenote: General titles}

General titles cannot in any way be protected. The publishers of the
"_Bibliographie Universelle_," in France, the "Post Office Directory,"
in England, and of "Irving's Works," in America, were all defeated in
attempts to prevent the use of those titles.

{Sidenote: Titles as trade-marks}

Titles are rather to be considered as trade-marks, which may be
registered in the United States under the Trade-Mark acts of 1905-6, and
protected by the statutory penalties, or may be protected on general
principles of equity. This doctrine was early upheld by the English
courts, especially in regard to periodicals, as in the titles of _Bell's
Life_ and the _London Journal_, and again came before the courts in the
important case of Weldon _v._ Dicks, as to the specific title of the
novel "Trial and triumph," in which case, in 1878, Vice-Chancellor
Malins enjoined quite another book under the same title, though the
title was chosen in ignorance of the first book and in entire good
faith. So, also, as to the title "Splendid misery," used by Miss Braddon
in 1879, Sir James Bacon, in the Chancery suit of Dicks _v._ Yates, in
1881, was inclined to support the claim of C. H. Hazelwood, who had used
the title in 1874, until it was shown that a forgotten novelist named
Purr had used it in 1801, so that it had become, in a measure, common
property.

{Sidenote: "Chatterbox" cases}

In the several American "Chatterbox" cases, Judge Wheeler's early
decision restraining the use of this "name or word, or any name or word
substantially identical therewith," in or upon any juveniles of the
general character of the English book of that name, was followed by
Judge Shipman, in 1887, in Estes _v._ Worthington, in the U. S. Circuit
Court in New York, who also held that the word "Chatterbox" had become
"a well-known trade-mark designating a well-known series," published in
a distinctive style and enjoined the rival publication, simulating the
external style, but of different contents. These decisions previous to
1891, resting on principles of trade-mark and not of copyright,
indirectly assured a measure of international copyright.

{Sidenote: Other title decisions}

In 1888 the publishers of _Life_ and of "The good things of _Life_"
obtained an injunction from the N. Y. Supreme Court, in Mitchell &
Miller _v._ White & Allen, to restrain the publication of "The spice of
life," as seemingly a continuation or counterpart of the authorized
collection of extracts from that periodical. In 1904, in Gannet _v._
Rupert, Judge Coxe in the U. S. Circuit Court of Appeals in New York, on
suit of the publishers of _Comfort_, restrained the use of the title
_Home Comfort_ on a rival periodical "not as a case of unfair
competition" but as "founded on a technical common law trade-mark"; and
characterized the name as "a badge of origin and genuineness. It is as
much a part of the proprietor's property as his counting room or
printing press. A rival publisher has no more right to appropriate the
name of its owner,"--despite the defence that _Comfort_ is "a standard
English word not fanciful or manufactured." This defence had precedent
in the doubt expressed by Lord Cairns in 1867 in the _Belgravia_ case,
cited beyond, as to copyright protection of a single word, and in the
decision of Judge Curtis in Isaacs _v._ Daly, in the N. Y. Superior
Court in 1874, as to the drama "Charity," that "the use of the word
'Charity' as a designation for any work of art or literature cannot
ordinarily be monopolized by any one person"; but under trade-mark law a
single word associated by registry or in the public mind with a
well-known product, may undoubtedly be protected as against misleading
use of the word otherwise. The courts will go even farther in preventing
the use of a title by another person with intent to deceive or to
utilize the reputation of another work or author, as a fraud upon the
public, or as unfair competition, without reference specifically to
trade-mark principles. Thus Judge Newburger of the N. Y. Supreme Court,
in 1910, in Eliot and Collier _v._ Jones and the Circle Publishing
Company, restrained the issue under the title "Dr. Eliot's five-foot
shelf" of books by the defendants of a set of books selected by and
issued under the authority of President Eliot of Harvard, under
arrangement with the co-plaintiff. The English rulings are to the like
effect, that while a title has no copyright protection except as part of
a book, the use of a title to attract purchasers on the supposition that
they are getting another book previously known by that title is a fraud
punishable at common law. Further citations of cases on these points are
given in the chapter on infringement.

{Sidenote: Projected titles}

There can be no claim to protection for the title of an unpublished
book, as a trade-mark or otherwise, just as there can be no copyright in
a projected book. This question was elaborately discussed in the leading
English case of Maxwell _v._ Hogg, in 1867, in relation to the magazine
_Belgravia_, when the rule was laid down that no matter what expenditure
had been made or advertising done, a title was not protectable previous
to its association with a work actually before the public. Judge
Shepley, in 1872, pointed out that "there is no such thing as property
in a trade-mark as an abstract name," for a trade-mark simply shows that
certain goods "were manufactured by a certain person." Nor can an
abandoned title, in the case of a periodical, be held against a person
starting a new periodical of that name, providing it does not purport to
be a continuation of the old, according to a French case quoted by
English authorities.

{Sidenote: Projected works not copyrightable}

There can be no statutory copyright in a book or other work projected
and not yet prepared, despite a very general notion that under the old
law a projected book could be protected by registering a title and
depositing a title-page of an unwritten or unpublished book. There is
nothing in copyright law corresponding to the _caveat_ in patent law.
This is not in conflict with the protection of an unpublished work at
common law or in equity referred to in the new American code (sec. 2) or
the provision in the new law (sec. 11) permitting the registration of "a
lecture or similar production or a dramatic or musical composition" or a
work of art, before publication, with the deposit of a complete copy or
identifying print.

{Sidenote: Immoral works}

There can be no copyright in an immoral book, and Lord Eldon, in Southey
_v._ Sherwood, carried this doctrine so far as to deny the common law
right of an author in a non-innocent manuscript, because there could be
no right to hold what there was no right to sell. His opinion, resulting
in the wide sale of a book which the author desired to suppress, has
been severely criticised by later authorities. In the American case of
Broder _v._ Zeno Mauvais Music Co., Judge Morrow, in the U. S. Circuit
Court in California, in 1898, held that as a song which the plaintiff
sought to protect contained indecent words, it was not entitled to
protection under the copyright law. There can be no copyright in
blasphemous, seditious, or libelous books; but though this rule was very
strictly enforced by English judges a century ago, the later courts
hesitate to rule strictly on this point, lest the rule be perverted to
sectarianism or despotism. There can be no copyright in books involving
fraud, as those which spuriously obtain salable value by being
represented to be the work of writers who did not write them, or to
contain matter which they do not contain; but this rule does not extend
to books under assumed names or innocently pretending to be what they
are not, as when Horace Walpole's "Castle of Otranto" was put forward as
a translation from the Italian.

{Sidenote: Periodicals}

In addition to the inclusion of "composite works," the new American law
specifically covers (sec. 5, b) "periodicals, including newspapers," and
by other provisions of the law above cited, this covers "all
copyrightable component parts." It is further provided (sec. 3) that
"the copyright upon composite works or periodicals shall give to the
proprietor thereof all the rights in respect thereto which he would have
if each part were individually copyrighted under this Act." While the
American code does not specifically provide as to the separate rights of
authors in articles in periodicals or composite works, which must
therefore be a matter of contract, or of practice or precedent implying
contract, provision for separate copyright is implied in a clause (sec.
12) requiring the deposit of only one copy instead of two in the case of
"a contribution to a periodical, for which contribution special
registration is requested"--although the specific article is fully
protected, as indicated above, by the general copyright.

{Sidenote: Definition of periodicals}

The new Rules and Regulations of the Copyright Office define periodicals
as follows:

"(6) This term includes newspapers, magazines, reviews, and serial
publications appearing oftener than once a year; bulletins or
proceedings of societies, etc., which appear regularly at intervals of
less than a year; and, generally, periodical publications which would be
registered as second class matter at the post office."

{Sidenote: Periodicals under manufacturing clause}

Periodicals, as well as books, are subject to the manufacturing clause
(sec. 15), but affidavit is not required, and the importation of "a
foreign newspaper or magazine, although containing matter copyrighted in
the United States printed or reprinted by authority of the copyright
proprietor," is not prohibited (sec. 31, b), "unless such newspaper or
magazine contains also copyright matter printed or reprinted without
such authorization"--but these and other conditions are treated in later
chapters.

{Sidenote: Periodicals copyrightable by numbers}

The law provides (sec. 19) in the case of a periodical, that the notice
of copyright may be "either upon the title-page or upon the first page
of text of each separate number or under the title heading," "provided
that one notice of copyright in each volume or in each number of a
newspaper or periodical published shall suffice." This implies that each
issue of a periodical must be separately copyrighted as though a
separate work, although the title may be registered as a trade-mark and
possibly protected in this way. A daily newspaper may thus be
copyrighted day by day at a cost of $365 per year, so as to protect all
its original material of substantial literary value. This was done in
fact under the American law previous to 1909, though periodicals were
not specifically mentioned; a daily price-list of the New York Cotton
Exchange was so entered day by day, but the question of maintaining such
a copyright under the old law seems never to have been tested in the
courts, and New York dailies copyrighted their Sunday cable letters
separately.

{Sidenote: News}

In respect to news, there is no provision in the new code. A bill to
protect news for twenty-four hours was at one time before Congress, but
was never passed. There is, therefore, no copyright protection for news
as such, but the general copyright of the newspaper or a special
copyright may protect the form of a dispatch, letter, or article
containing news. Thus the New York _Herald_ copyrighted without question
Dr. Cook's Arctic dispatches, and the question as to the copyright by
the New York _Times_ of Commander Peary's dispatches describing his dash
for the pole hinged solely on the question of ownership or authority to
copyright, as set forth in a later chapter. But any such copyright could
not prevent publication by other newspapers of the news that Cook and
Peary claimed to have reached the North Pole, at stated dates and under
stated circumstances, though their own form of statement of the facts
could not lawfully be copied except within "fair use."

In 1892 Justice North in the English Court of Chancery, in Walter _v._
Steinkopff, said that "although it is sometimes said that there is no
copyright in news, there could be copyright in the particular form of
language or mode of expression by which information is conveyed." The
English courts went further in two actions brought by the Exchange
Telegraph Co., 1895-97, in the first of which Gregory & Co. were
restrained from using information furnished to subscribers first as
unpublished matter before publication, second after publication because
of copyright on the publication, and third as "unfair competition." In
1902, in Nat. Tel. News Co. _v._ West. Union Tel. Co., the U. S. Circuit
Court of Appeals protected news on ticker tapes, and in 1910, in Press
Assoc. _v._ Reporting Agency, the English Chancery Division protected
election reports on the last-named ground alone.

{Sidenote: British Periodicals}

The statutes of Great Britain have hitherto provided that a work
published in parts or a periodical may be fully protected by copyright
entry of the first part; the new code covers newspapers and periodicals
generally as collective works. When the London _Times'_ memoir of
Beaconsfield was reprinted as a penny pamphlet, the _Times_ brought suit
as a matter of common law right, but the judge held that a newspaper was
copyrightable under the statute, and therefore that a common law suit
could not hold.

{Sidenote: Oral works}

The American law now specifically protects oral works by including in
the classification (sec. 5, c) "lectures, sermons, addresses, prepared
for oral delivery," and by assuring (sec. 1, c) exclusive right "to
deliver or authorize the delivery of the copyrighted work in public for
profit if it be a lecture, sermon, address, or similar production." The
phrase "similar production" and the spirit of the statute suggest that,
though the manuscript of a book cannot be copyrighted prior to
publication, a "reading" from an unpublished book, as a chapter, scene,
or poem, might be registered and protected for oral delivery before
publication; and the Copyright Office will make such registry on such
application. The former law made no specific provision, but the courts
seemed disposed to protect a lecturer on the common law ground that the
lecture read is not published by reading, and can be controlled as a
manuscript. In the application of common law doctrine to extemporaneous
or other oral deliveries, the question of implied contract between the
speaker and his auditors enters, and the trend of court decisions is
that a hearer who has purchased or obtained a ticket, may make notes for
his own use but may not publish them for profit. In the leading English
case of Abernethy _v._ Hutchinson, in 1825, Lord Chancellor Eldon
protected Dr. Abernethy against the publication of notes of unwritten
medical lectures, evidently obtained through a student hearer.

{Sidenote: Newspaper reports}

Newspapers have, however, in practice freely republished lectures, and
probably even under the present law the courts would permit, unless
report was specifically and entirely forbidden by the speaker, a
reasonable report but not a _verbatim_ reproduction of the address, as
within the bounds of "fair use." The publication of an unauthorized
report by one newspaper would not justify another newspaper in copying
the report without consent of the copyright proprietor on the ground of
publication, for such unauthorized publication cannot deprive the
copyright proprietor of his rights. If a speaker delivers an address,
extemporaneously or even from written manuscript without registering the
address as an unpublished work or taking other precautions, it is
probable that the courts would protect his rights at common law; but it
would be hazardous not to take advantage of the statute.

{Sidenote: Lectures in England}

Lectures have hitherto been protected in England in case the lecturer
gave notice of reservation in writing two days in advance to two
justices at the place of reading, but this complicated proviso caused
speakers to rely rather on the common law doctrine that oral delivery is
not publication. The new British code specifically provides that
delivery is not publication, but permits newspaper report unless the
speaker prohibits such report by notice posted near the main entrance
and except during public worship near the speaker's position; "newspaper
summary" within "fair dealing" is expressly permitted.

{Sidenote: Letters}

Letters are not specified either in English or American statutes under
copyright law. A private letter has been held an unpublished
manuscript, the right to publish or copyright remaining with the author
while living, though the material letter, its paper and ink, has passed
to the receiver. Thus in 1741 Pope prevented Curl, an English
bookseller, from republishing his letters to Swift, and in 1774, in
Thompson _v._ Stanhope, Lord Chesterfield prevented his son's widow from
publishing letters which he had made a gift to her. Letters, however,
are copyrightable by themselves or as part of a book; and the writer may
protect a letter against unauthorized publication by himself publishing
and copyrighting it. The U. S. Supreme Court in 1841, in Folsom _v._
Marsh, enjoined the republication of letters of Washington, published by
authority in Sparks's "Life of Washington," through Justice Story, who
said: "The author of any letter or letters, and his representatives,
whether they are literary letters or letters of business, possess the
sole and exclusive copyright therein; and no person, neither those to
whom they are addressed, nor other persons, have any right or authority
to publish the same." But as manuscripts posthumously published, the
copyright in letters may belong to the receiver or his assigns; and in
Macmillan _v._ Dent, in 1906, the English Court of Appeal held, where
the owners of letters of Charles Lamb had sold the copyright to certain
publishers, these could not be republished by another who had later
bought the material letters even under the authorization of the
representative of Lamb's heirs. In Philip _v._ Pennell, Whistler's
executrix was denied an injunction to prevent the use of biographical
information obtained from the receivers of letters. But _obiter dicta_
indicated that the courts may grant to the writer's representatives an
injunction against publication or misuse. The laws of some countries
specifically permit the publication of letters in the interest of
justice. Unless the letter is of the nature of privileged
correspondence, the courts can probably require the production of a
letter in court, and in fact do subpoena telegraph companies to produce
the originals or transmittal records of telegrams in court, and thus
make them _quasi_ public property. The sale of a manuscript letter
cannot authorize a vendee to publish it without consent of the writer,
and the receiver of a letter is perhaps bound to keep a letter private
or destroy it, if so required by the writer, but this is a right
difficult of enforcement if not doubtful _in esse_. The receiver of a
letter has probably a right to destroy it at his will, unless the writer
has required its return to him.

The subject-matter of copyright in respect to musical and dramatic
compositions and works of art, is treated specifically in later chapters
on dramatic and musical copyright and on artistic copyright.

{Sidenote: Designs patentable}

Designs for use in manufacture are, in the United States, subjects of
patent and not copyright. It is provided by the act of May 9, 1902, that
"any new, original, and ornamental design for an article of manufacture"
may be patented, and this classification inferentially excludes such
designs from copyright. This generalized description of design patents
replaced, at the suggestion of the Commissioner of Patents, the specific
descriptions in the design patents act of December 1, 1873, and adopted
instead the more comprehensive phraseology of the act of February 4,
1887, for the punishment of infringement of design patents. In like
manner the new British code excludes designs registrable under the
patents and designs act, 1907, "except designs which, though capable of
being so registered, are not used or intended to be used as models or
patterns to be multiplied by any industrial process."

{Sidenote: Foreign practice}

"The foreign copyright legislation," as is stated in Copyright Office
Bulletin, No. 9 of 1905, "instead of specifically naming the productions
which are subject-matter of copyright, generally uses some inclusive
expression, such as 'all writings,' 'every kind of literary work,'
'works of literature,' 'literary and scientific works,' 'every
production of literature and science,' and even such inclusive terms as
'every work of the intellect.'" Spain adds the inclusive phrase
"produced or published by ... any kind of impression or reproduction
known now or subsequently invented." Great Britain, most of her
colonies, and some other countries have set forth specific categories.
But the new British measure uses the general phrase "every original
literary dramatic musical and artistic work"--this replacing the several
categories in the several previous laws. In a few countries manuscripts,
personal letters and telegraphic messages, mostly in newspaper use, and
in Ecuador, titles of periodicals, are specifically scheduled as
subjects of copyright.

{Sidenote: International definition}

The Berlin convention uses the general expression "literary and artistic
works," which it defines as including "all productions in the literary,
scientific or artistic domain, whatever the mode or form of
reproduction," then specifying in detail categories of literary,
dramatic, musical and other artistic works, as set forth in the chapter
on international conventions and arrangements.



VII

OWNERSHIP OF COPYRIGHT: WHO MAY SECURE COPYRIGHT


{Sidenote: Persons named}

The American code of 1909 names (sec. 8) "the author or proprietor of
any work made the subject of copyright by this Act, or his executors,
administrators, or assigns" as the persons in whom the copyright may
lodge. It also provides specifically (sec. 62) that "the word 'author'
shall include an employer in the case of works made for hire."

The American law formerly named "the author, inventor, designer, or
proprietor of any work, and the executors, administrators, or assigns of
any such person" as the persons in whom copyright may lodge. The
Librarian of Congress accordingly issued copyright certificates for
books as to an "author" or "proprietor" only, assuming usually that an
editor was the "author" and a publisher the "proprietor," and never
going behind the claim set forth in the application. Under the new law
the applicant is designated only as the "claimant," and no such
distinction is made, except that the Copyright Office has an index card
for proprietor, as well as author, when another than the author makes
the application.

{Sidenote: The author primarily}

The author is the person primarily entitled to copyright. He may sell or
otherwise transfer his production before it is copyrighted, in which
case the new proprietor obtains all the common law rights of property,
both in the manuscript and its publication, including the right to
copyright. This common law right, including the right to copyright, may
extend, Drone argues, to the finder of an unpublished manuscript,
provided no one successfully disputes his ownership of his find, if the
manuscript be copyrightable; but there are no decisions on this point.
If a copyright is taken out by another person (as the publisher of the
book), it is done impliedly in trust for the author, as is a usual
custom among American publishers. The proprietor is defined to mean "the
representative of an artist or author who might himself obtain
copyright."

{Sidenote: Claimant's right to register}

The Register of Copyrights is not a _quasi_ judicial officer, as is the
Commissioner of Patents, and he does not undertake to make decision as
to the right of the claimant, this question being one for determination
by the courts in specific instances. In cases of doubt, however, he may
in practice, for the sake of convenience and of clearness of record,
call the attention of the claimant to such doubt and invite explanation,
but he probably would not be justified in refusing to register the
application for a claimant who asserted his right to such entry. A
former Librarian of Congress, then directly the copyright officer, used
to say that he would enter copyright for any one on the Bible in King
James' version if formal application were made to him, thus emphasizing
the statement that he had no judicial authority. In the case of Everson
_v._ John Russell Young, then Librarian of Congress, Judge Cole in 1889,
while refusing the mandamus asked for, asserted incidentally that "the
Librarian had no discretion." Where a second application is made for the
entry of the same copyrightable work by a second party, the copyright
officer would not decline to register the second application, if the
claimant insisted on his right, after the fact of the first registration
had been brought to the second claimant's notice, and the question of
ownership would have to be brought before the courts. It is only in the
case of works evidently not copyrightable, or in the case of claimants
not entitled to apply for registration, as a citizen of a foreign
country with which the United States has no copyright relations, or in
other cases evidently beyond the scope of the law, that the copyright
officer would exercise discretion and decline to make the record.

{Sidenote: Employer as author}

The provision of the new code specifically including as author (sec. 62)
"an employer in the case of works made for hire" is new in American law,
but it adopts previous decisions of the courts. It does not, however,
adjudicate the application or specific definition of this phrase, which
remains in large measure a question of contract. Earlier copyright
decisions were to the effect that the authorship may inhere in the
employer, if the design of the work is so far his as to make him the
virtual creator and the actual writer a deputy merely; but that he is
not an author who "merely suggests the subject, and has no share in the
design or execution of the work." But under the new law, the case turns
upon the meaning of "employment," which would be clear in the case of
writers paid wages or salary for doing the work on an encyclopædia, but
might not be clear in the case of an author paid in advance or on
account by a publisher, though working on a general plan suggested or
invented by the publisher. In such cases the proprietary right,
including the right to secure copyright, depends upon the contract,
implied or express, and the courts will decide this according to the law
of contracts. In Boucicault _v._ Fox, in 1862, Judge Shipman, in the U.
S. Circuit Court, held, as to the play "The octoroon," that "a man's
intellectual productions are peculiarly his own, and he will not be
deemed to have parted with his right and transferred it to his employer
until a valid agreement to that effect is adduced." It is safer in all
cases, for the protection of the employer and for the sake of clear
relations with the actual person who does the work, that there should be
a definite contract.

When a salaried law reporter had been employed by the State of New York
under a law that the copyright of the Reports should vest in the State,
Judge Nelson for the Circuit Court of Appeals, in 1852, in Little _v._
Gould, held as valid an entry by the Secretary of State, "in trust for
the State of New York," though no formal assignment had been made.

{Sidenote: Implied ownership}

In the absence of specific contract, or even in some cases of specific
contract, many cross-questions may arise which the law does not and
cannot determine in advance. In the case of a book "with illustrations
by John Leech," where Leech retained the copyright of the designs,
though the publishers owned the wood on which he had drawn them, an
English court held to a distinction between the copyright and the right
to the material, and directed the publishers to waive their lesser right
and surrender the blocks, in view of the circumstances of the contract.

{Sidenote: Protection outside of copyright}

Most of the cases arising as to ownership are, in fact, issues outside
of copyright law, as when in 1883 in Clemens _v._ Belford, in the U. S.
Circuit Court in Illinois, Samuel L. Clemens vainly sought to restrain
the use of his pen-name, "Mark Twain," in a collection of his
uncopyrighted papers, Judge Blodgett holding that whoever has a right to
publish has a right to state authorship, though an author can restrain
the publication over his name of things he did not write. The same
doctrine was upheld in 1910 in Ellis _v._ Hurst, where a publisher had
printed with the real name of the author some non-copyright books which
Edward S. Ellis had put forth under a pseudonym. Judge Greenbaum, in the
N. Y. Supreme Court, held that the law insuring right of privacy does
not prevent the use of a writer's name on a book undoubtedly of his
writing.

In 1908 Mr. Clemens sought in vain to prevent the use by others of his
pseudonym, "Mark Twain," by incorporating a company with this name,
planning thus to secure the exclusive use of the name for this
corporation and practically obtaining a continuing trade-mark protection
for it under this device. But that an author may protect a _nom de
plume_ of settled use independent of copyright or trade-mark was held in
Landa v. Greenberg in 1908, in Chancery Division.

{Sidenote: Work in cyclopædias}

When, as in the case of a cyclopædia, many persons are employed at the
offices of an employer, using his materials and facilities, and
especially if on salary, the courts would undoubtedly uphold his full
proprietorship in their work. Where outside persons contribute special
articles, the presumption would probably be that the ownership of the
copyright, for that special publication, vested in the employer, but
that neither he, without the author's consent, nor the author, without
his consent, could publish the article in other competing shape. In
Bullen _v._ Aflalo, the House of Lords, in 1903, reversing the lower
courts, protected the proprietors of an encyclopædia who had purchased
articles from authors, against reprints of the material elsewhere, by
the authors themselves, on the ground "that the right to obtain
copyright was intended to pass to the publisher, otherwise he would get
nothing from his bargain; and unless the publisher and proprietor of the
encyclopædia stood in the shoes of the actual writer and was the
proprietor of the copyright, he would have nothing for his money,
because the articles might be published by others and he would have no
remedy, not having the copyright."

{Sidenote: Association of author's name}

The right of a contributor to have his name associated with his work in
the case of an encyclopædia, at issue in Basil Jones _v._ American Law
Book Co., where the individual writer's name was replaced by that of a
distinguished jurist, though upheld in 1905 by Judge McCall in the N. Y.
Supreme Court, was denied in the reversal of this decision in 1908 by
the Appellate Division through Judge Houghton.

{Sidenote: Added material and alteration}

Where a publisher had affixed additional material to a copyrighted book,
the author was denied relief in Holloway _v._ Bradley, in 1886, by Judge
Butler in the U. S. Circuit Court; but this decision would not hold
where the added material was so placed as to give the false impression
that it was written by the author of the copyrighted work. Thus in 1910,
in Gilbert _v._ Workman, Sir W. S. Gilbert obtained an order in the
Chancery Division through Justice Neville against the interpolation of a
song into his copyrighted opera without his consent.

{Sidenote: Separate registration of contributions}

This would hold true to like extent in respect to alterations, which
might be permissible when in the nature of proof-reading correction or
editorial revision, but contrary to equity when they pervert, obscure,
or otherwise misrepresent the author.

In respect to composite works, the new American code indicates (sec. 23)
that there may be separate registration of contributions, inferentially
in the person of "an individual author," as distinguished from the
general entry for copyright of the composite work. This doubtless refers
to the practice, for instance, of the entry in his own name of his
specific work, by a novelist or other contributor to a periodical, in
addition to the general entry of the number of the periodical of which
it is a copyrightable component part. The only direct effect is to give
to the specific author _prima facie_ evidence of ownership in his
specific contribution, as distinguished from the right of the proprietor
of the general copyright, and in some respects the clause is ambiguous
and perhaps misleading, making it the more desirable that the relation
of the individual author should be defined by contract. It is not really
in conflict, however, with the principle that there cannot be two
copyrights in the same work, as the evident distinction implied is that
the proprietor of the general copyright holds the right for publication
in the periodical and that the specific author reserves the right of
publication in other form, which distinction is sufficiently provided
for as a matter of contract and does not depend upon specific entry of
the contribution. The wisest course may be for the proprietor of the
periodical or other composite work to reassign his interest in the
specific contribution, as was done by the proprietors of the _Smart Set_
as adjudicated in the case of Dam _v._ Kirke La Shelle Co., cited in the
chapter on dramatic and musical copyright, and thus remove possible
doubt as to ownership.

{Sidenote: Anonymous works}

There is no specific reference in the new American code as to anonymous
or pseudonymous works, except as to duration of copyright. In practice,
the Copyright Office assumes that the applicant for the entry of an
anonymous or pseudonymous work is the qualified and legal author or
proprietor, and any disputed question of fact would ultimately be
decided by the courts.

{Sidenote: Joint authorship}

There may be joint authorship in a work of common design, in which case
the joint authors will become owners in common of the undivided
property; but mere alterations or work on specific parts could not
justify claim to more than such alterations or parts. The copyright
would naturally be entered in both names, but as one copyright; it was
held in 1902, in Mifflin _v._ Dutton, by the U. S. Supreme Court, that
"there cannot be duplicate copyrights of the same book in different
names." If one of the joint authors and not the other should apply for
entry, the Copyright Office would in practice probably record the
copyright claim on the presumption that the author was acting in the
common interest; but if two joint authors applied simultaneously and
severally, the question of ownership would have to be settled by the
courts.

{Sidenote: Corporate bodies}

A corporate body, even though not incorporated under statute, is
considered an author in the case of its own proceedings or similar
publications, and in 1903 Justice Holmes rendered the decision of the U.
S. Supreme Court in the case of Bleistein _v._ Donaldson Lith. Co.,
though the court was divided on the subject, that a copyright taken in
the name of the Courier Lithographing Company, which was only the trade
name of the complainant, was valid.

{Sidenote: Posthumous works}

In the case of posthumous works, the person entitled to copyright would
be the executor, administrator, or the heirs of the author, and the
owner of an unpublished manuscript could probably enter and maintain
copyright in the absence of other legal claimant.

{Sidenote: The Peary cases}

{Sidenote: Opposing decisions}

The first important case under the new American code, in September,
1909, dealt with the question who may obtain copyright. On the report of
the discovery of the North Pole, the New York _Herald_ procured from Dr.
Cook his account of his journey and copyrighted it on its publication in
the _Herald_,--which copyright does not seem to have been questioned.
Immediately thereafter came Commander Peary's account of his polar
journey, for which the New York _Times_ had contracted with him before
his departure in the previous year. The Peary report was published
simultaneously by the New York _Times_ and the London _Times_, but the
difference of five hours enabled the correspondents of the New York
_Sun_ and _World_ to cable the report to their respective papers in time
for publication at the same hour in America as in the New York _Times_.
Anticipating this course, the New York _Times_ had taken the precaution
to publish the report in pamphlet or "book" form some hours before
newspaper publication, and to copyright this as a book. When an
injunction was asked in the U. S. Circuit Court from Judge Hand, that
judge granted the injunction, but on the required production of the
contract in court, dissolved his injunction on the ground that the
contract between Peary and the New York _Times_ gave to the _Times_ only
the right to news publication and specifically reserved to Peary
magazine and book rights. He inferred thus that the _Times_ had no right
to copyright the news report as a book, and was not the agent of the
author for that purpose. To the contrary, Judge Grosscup in Chicago, in
an exactly similar case against the Chicago _Inter-Ocean_ and other
Chicago papers, and with the contract before him, maintained the
copyright by the _Times_. The two contradictory decisions have not so
far been adjudicated in the higher courts. It will be observed that the
question is not strictly one of copyright, but of contract, and that it
is not denied that the news report, in the literary form given it by the
author, was a proper subject of copyright, though the news of the
discovery of the North Pole might not be copyrightable. Judge Hand
perhaps erred in assuming that there could be separate copyright for
news, magazine, or book publication, overlooking the fact that Peary had
conferred on the _Times_ authority to protect the report sent to it by
cable, while reserving to himself rights in magazine or book publication
of his material, whether in the same or different form.

{Sidenote: Renewal rights}

In the renewal of copyright, the new American code follows the previous
law in differentiating the persons entitled to renew the copyright. It
provides (sec. 23) that in the case of a posthumous composite or
corporate work originally copyrighted by the proprietor thereof or a
work made for hire, the proprietor of such copyright shall be entitled
to a renewal; but in other cases, including a separately registered
contribution by an individual to a composite work, the author or the
widow, widower or children, or, if such be not living, the author's
executors or next of kin shall be entitled to a renewal. This means that
there can be no renewal by an assignee proprietor, and that in the
absence of natural heirs of a personal author, no person is entitled to
a renewal of his copyright. The new law has been specifically construed
to this effect by the Attorney-General in his opinion of February 3,
1910. It should be noted that the word "administrators," included in the
provision as to original application (sec. 8), is omitted from the
provision as to renewal (sec. 23) including renewal of existing
copyrights (sec. 24), indicating that while an author may make bequest
of copyright for the renewal term, which right may then be claimed by
his executor, the right to renew lapses when he makes no will and has no
next of kin to inherit the right of renewal.

{Sidenote: Assignments}

Specific provision as to the method and record of the transfer of
copyrights by assignments are contained in the following provisions of
the code of 1909:

"(Sec. 42.) That copyright secured under this or previous Acts of the
United States may be assigned, granted, or mortgaged by an instrument in
writing signed by the proprietor of the copyright, or may be bequeathed
by will.

"(Sec. 43.) That every assignment of copyright executed in a foreign
country shall be acknowledged by the assignor before a consular officer
or secretary of legation of the United States authorized by law to
administer oaths or perform notarial acts. The certificate of such
acknowledgment under the hand and official seal of such consular officer
or secretary of legation shall be _prima facie_ evidence of the
execution of the instrument.

{Sidenote: Assignment record}

"(Sec. 44.) That every assignment of copyright shall be recorded in the
copyright office within three calendar months after its execution in the
United States or within six calendar months after its execution without
the limits of the United States, in default of which it shall be void as
against any subsequent purchaser or mortgagee for a valuable
consideration, without notice, whose assignment has been duly recorded.

"(Sec. 45.) That the register of copyrights shall, upon payment of the
prescribed fee, record such assignment, and shall return it to the
sender with a certificate of record attached under seal of the copyright
office, and upon the payment of the fee prescribed by this Act he shall
furnish to any person requesting the same a certified copy thereof under
the said seal.

{Sidenote: Substitution of name}

"(Sec. 46). That when an assignment of the copyright in a specified book
or other work has been recorded the assignee may substitute his name for
that of the assignor in the statutory notice of copyright prescribed by
this Act."

It should be noted that this last provision, authorizing the
substitution of a name, is applicable only to the general copyright in a
work, and not to a divided right; otherwise there would seem to be more
than one copyright in the same work. The Copyright Office will, however,
record assignments of specific or divided rights without reference to
this power of substitution. Further assignment from one assignee to
another is permissible to any extent, and in cases of repeated
assignment of a general copyright there may be further substitution of
names.

{Sidenote: Witnesses}

There is no specific requirement as to the witnessing of assignments,
which would therefore follow the usual principles of law. This was,
however, an important question in England, and under the early English
statute the courts held that assignments must be in writing, attested by
two witnesses; the later statute of Victoria modified the language, and
the new English code requires assignment in writing signed by the owner
or his authorized agent, without specifying witnesses. But assignment of
common law rights (as in an unpublished manuscript) may doubtless be by
word of mouth.

{Sidenote: "Outrights" and renewal}

Where an author sells his entire rights "outright," he cannot transfer
the right to take out renewal, but he may directly or by inference bind
himself to apply for such renewal in the interest of the new proprietor.
Under such a contract, this proprietor could probably require him by
equity proceedings to take this step. Such a contract, however, would
not bar the author from his right to renewal under the copyright law and
through the Copyright Office, although it is possible that the courts
might enjoin an author from renewal or assignment of a renewed copyright
in the interest of another than the original assignee. It should be
noted that in the case of composite, corporate or like impersonal works,
copyrighted under the new code, renewal is not restricted to the
_original_ proprietor, though by analogy this should be the practice;
but that in the case of renewal of copyrights existing before July 1,
1909, and in extension of the present renewal terms, the use of the
phrase "such proprietor," referring back to "the original proprietor,"
does make such limitation.

{Sidenote: Proof of proprietorship}

Where the copyright proprietor of record is not the author, the courts
may require him to prove his rights, in default of which the copyright
certificate will be adjudged null and void, as was done in 1909 by the
Circuit Court of Appeals both in Bosselman _v._ Richardson, where a son
copyrighted paintings by his father and failed to prove that they had
not before been published, and in Saake _v._ Lederer, where the court
canceled the copyright of the play "Old Heidelberg" because Lederer had
obtained from the German author only a license to perform and not a
right to copyright.

{Sidenote: Foreign citizens}

As to copyright by others than citizens of the country, the law of 1909
provides (sec. 8) "that the copyright secured by this Act shall extend
to the work of an author or proprietor who is a citizen or subject of a
foreign state or nation, only:

"(a) When an alien author or proprietor shall be domiciled within the
United States at the time of the first publication of his work; or

"(b) When the foreign state or nation of which such author or proprietor
is a citizen or subject grants, either by treaty, convention, agreement,
or law, to citizens of the United States the benefit of copyright on
substantially the same basis as to its own citizens, or copyright
protection substantially equal to the protection secured to such foreign
author under this Act, or by treaty; or when such foreign state or
nation is a party to an international agreement which provides for
reciprocity in the granting of copyright, by the terms of which
agreement the United States may, at its pleasure, become a party
thereto.

"The existence of the reciprocal conditions aforesaid shall be
determined by the President of the United States, by proclamation made
from time to time, as the purposes of this Act may require."

{Sidenote: Earlier provisions}

The Revised Statutes formerly extended copyright to "a citizen of the
United States or _resident therein_ or his widow or children," and the
act of 1891 provided for a _quasi_ international copyright on a basis
similar to that in subsection (b), cited above, of the law of 1909, _i.
e._ on a basis of reciprocity. The new American code practically adopts
the features both of the Revised Statutes and the act of 1891, though
with verbal and substantial differences. The word "domiciled" is new in
the law and has yet to be construed in a copyright case, but it is
presumably the equivalent of "resident." The new Rules and Regulations
of the Copyright Office use the phrase "(2) a resident alien domiciled
in the United States at the time of the first publication of his work."

{Sidenote: Residence}

A resident, under the American decisions, is a person who intends to
reside permanently in this country. It is decided by the intention of
the resident. A person who is residing here without intention of
permanence probably cannot maintain copyright under this clause. For
English copyright, on the contrary, a person temporarily residing in His
Majesty's dominions has been considered a resident. "The United States"
would doubtless be construed to include territories and dependencies, as
specific jurisdiction is given (sec. 34) to stated courts in Alaska,
Hawaii, the Philippine Islands and Porto Rico, in addition to the
general decisions of the U. S. Supreme Court.

Under the statute of Anne the English courts differed persistently on
the question whether a non-resident foreigner could obtain British
copyright by first publication within the British dominions, until in
1854, in the ultimate case of Jefferys _v._ Boosey, the House of Lords,
after consulting the judges, of whom six denied and four sustained the
contention, decided unanimously that a non-resident foreigner could not
acquire copyright by first publication. Under the law of 1842, the
question was again raised, in view of the variation of the language from
that in the statute of Anne; in 1868, in the case of Routledge _v._ Low,
in which an American author claimed copyright for his work first
published in London while he resided for a few days in Canada, the House
of Lords held that a foreigner might thus obtain copyright by temporary
residence within the British dominions and indicated, but did not
decide, that a foreigner could obtain copyright by first publication,
even if not temporarily resident within the British dominions. After the
passage of the "international copyright amendment" in 1891, the American
law authorities consulted with the law officers of the Crown, who
rendered a decision that foreign authors were entitled to British
copyright on the sole condition of first publication, and on this
decision the President based his proclamation of reciprocal relations
with Great Britain. The new British measure retains first publication
within the included parts of the Empire as the essential condition,
except in unpublished works, unless otherwise provided under
international copyright, though the Crown may withdraw this privilege
from foreigners whose countries do not assure reciprocity.

{Sidenote: Intending citizens}

The provision of subsection (a) is chiefly useful, it would seem, to
protect intending citizens who have applied for naturalization papers
and incidentally renounced their previous allegiance to another power
and thus put themselves beyond the pale of the international
conventions.

{Sidenote: Time of first publication}

"First publication" is not limited in terms to the United States, and
the "alien author or proprietor," provided he makes application under
this clause and is not a citizen of a country with which the United
States has a copyright convention, must therefore be domiciled here, it
would seem, at the time of first publication, in whatever country that
may be.

{Sidenote: Non-qualified authors cannot transfer}

It has twice been decided, both prior to and since the "international
copyright amendment" of 1891, that a foreign author not qualified to
secure a copyright cannot indirectly obtain one by assignment to an
American or other proprietor. In 1890 J. M. Barrie assigned to J. W.
Lovell, and he to the U. S. Book Company, his American rights in "The
little minister," and after the act of 1891 the latter endeavored to
restrain a dramatization of the story. Judge Jenkins held with the lower
court that the foreign author could transfer only, prior to the act, the
right to publish from advance sheets and not the right to copyright. In
the case of Bong _v._ Campbell Art Co., in which it was sought to
protect under the act of 1891 a work by a Peruvian painter, Hernandez,
whose country had no international relations with the United States,
through transfer to a German proprietor, whose country had reciprocal
relations, it was held in 1909 by the U. S. Supreme Court, through
Justice McKenna, that an author who is a citizen of a country with which
the United States has no copyright relations cannot indirectly obtain
American copyright by making a citizen of a country with which the
United States has copyright relations the proprietor of his work. A
proprietor has been construed by the courts to mean merely an assignee
of a qualified author. It is evident, therefore, despite the ambiguous
phrasing of the statute, that an assignee proprietor, though domiciled
in the United States at the time of first publication of a work, could
not obtain copyright unless the author were so domiciled, for the
contrary ruling would nullify the general purport of the law by
permitting an assignee to acquire rights which the non-qualified author
could not secure. The evident construction of the word "proprietor" in
this clause is as proprietor of an impersonal work and not an assignee
proprietor. The Rules and Regulations of the Copyright Office,
construing the code of 1909, say specifically (2): "If the author of the
work should be a person who could not himself claim the benefit of the
copyright act, the proprietor cannot claim it."

{Sidenote: Foreign ownership}

But it seems that a foreigner may enter copyright in the work of a
citizen or resident author--it being foreign authorship, not ownership,
which the law refuses to protect, though this point has not been
judicially determined. Under the provision (sec. 62) of the new American
code giving copyright to an employer as author "in the case of works
made for hire," it would seem that a person entitled to make copyright
entry might, as an employer, obtain copyright on the work of an alien
employee not domiciled here and not otherwise entitled to enter
copyright; but it is probable that this construction would not extend to
a separate or separable work, as this would be contrary to the
principles adjudicated as above cited.

The complicated question of the ownership and the right to secure
copyright in translations from foreign works or into foreign languages,
under this international copyright provision, is covered under
translation in the preceding chapter on subject-matter of copyright.

{Sidenote: Proclaimed countries}

Under the provisions of the international copyright clause of 1891
Presidential proclamations have designated as countries with which the
United States has copyright relations (July 1, 1891) Belgium, France,
Great Britain and her possessions, Switzerland; (April 15, 1892)
Germany; (October 31, 1892) Italy; (May 8, 1893) Denmark; (July 20,
1893) Portugal; (July 10, 1895) Spain; (February 27, 1896) Mexico; (May
25, 1896) Chile; (October 19, 1899) Costa Rica; (November 20, 1899)
Holland and possessions; (November 17, 1903) Cuba; (January 13, 1904)
China--this treaty of October 8, 1903, protecting for ten years books,
maps, prints or engravings "especially prepared for the use and
education of the Chinese people," or "translation into Chinese of any
book," but leaving to Chinese subjects liberty to make "original
translations into Chinese"; (July 1, 1905) Norway; (May 17, 1906)
Japan--this treaty of November 10, 1905, also excepting translations,
and (August 11, 1908) additionally protecting Japanese relations in
China and Korea; (September 20, 1907) Austria, not including Hungary;
and (April 9, 1908) under the Pan American convention signed in Mexico
City, January 27, 1902, effective from July 1, 1908, Guatemala,
Salvador, Costa Rica, Honduras and Nicaragua.

{Sidenote: Under act of 1909}

Under the provisions of the act of 1909, the President of the United
States issued a general proclamation, dated April 9, 1910, certifying
anew to the existence of reciprocal relations with the above-mentioned
countries, under the arrangements of the new act, as from its effective
date July 1, 1909. This accepted such relations as continuous and
uninterrupted, without the necessity of new treaties, with the effect
that international copyrights before July 1, 1909, were under the
arrangements of the act of 1891 and from and after that date under the
arrangements of the code of 1909. Luxemburg was added by proclamation of
June 29, 1910, and Sweden by that of May 26, 1911. Proclamations of
December 8, 1910, as to Germany, and June 14, 1911, as to Belgium,
Luxemburg and Norway, proclaimed reciprocal relations as to mechanical
reproductions.

{Sidenote: Buenos Aires convention}

The ratification of the Buenos Aires convention by the U. S. Senate,
February 16, 1911, has the effect of authorizing the President to
proclaim reciprocal relations with other countries which are parties to
that treaty, as each ratifies the convention.

{Sidenote: The new British code}

The new British measure specifies that "the author of a work shall be
the first owner of the copyright," except where an engraving,
photograph, or portrait is ordered for valuable consideration or where
work is done in the course of employment. The owner may assign the
copyright in writing, "either wholly or partially, and either generally
or subject to limitations to any particular country, and either for the
whole term of the copyright or for any part thereof, and may grant any
interest in the right by license"; in case of partial assignment, the
original owner and the assignee become respectively the owners of the
residual and assigned portions of the copyright. But any assignment,
except by will, becomes null and void twenty-five years after the death
of the author when the entire rights revert to his heirs.

{Sidenote: Foreign practice}

In general the statutes of most of the copyright countries designate
"authors" and their "assigns and heirs" as the persons who may obtain
copyright. The Australian law of 1905 defines "author" to include "the
personal representatives of an author." In certain countries the laws
specifically mention as persons who may secure copyright "joint
authors," "proprietors" in some countries and "publishers" in other
countries of anonymous and pseudonymous, posthumous or unpublished
works, periodicals and composite works, "corporate bodies,"
"translators," "editors, compilers or adapters" and "persons who give a
commission for a portrait or photograph."



VIII

DURATION OF COPYRIGHT: TERM AND RENEWAL


{Sidenote: Historic precedent}

The duration of copyright was in the early printers' privileges for a
short term, as for seven years, except in France, where copyrights were
in perpetuity until the act of the National Assembly; in modern times
the copyright term has been lengthened until a term extending through
and beyond the life of the author has been adopted by thirty-seven
countries, or more than half of those which have copyright laws, of
which four assure perpetual copyright. The Constitution imposes only one
limitation on the comprehensive rights of authors, in the provision that
protection shall be "for limited times" only. This provision has made
the discussion of perpetual copyright purely academic in this country.
The new American code adopts the double term of twenty-eight and
twenty-eight years, making fifty-six years in all, without reference to
the life of the author.

{Sidenote: Previous American practice}

The American law previous to 1909 provided for a uniform term of
twenty-eight years, dating from the time of recording the title, with a
renewal of fourteen years, securable only by the author, or, if he be
dead at the expiration of the term, by his widow or children. No other
heirs or persons could renew. The new code differs in making the renewal
period a second twenty-eight years and extending the right of renewal to
the executors or next of kin and to the proprietors of composite or
other impersonal works; but it still denies renewal to assignee
proprietors of personal works.

{Sidenote: Term in code of 1909}

The American code of 1909 provides (sec. 23) "that the copyright secured
by this Act shall endure for twenty-eight years from the date of first
publication, whether the copyrighted work bears the author's true name
or is published anonymously or under an assumed name," and makes
provision also in the cases specified for renewal for a second period of
twenty-eight years, provided that renewal application is registered in
the Copyright Office "within one year prior to the expiration of the
original term of copyright."

{Sidenote: Renewal}

The provisions as to renewal are in full as follows (sec. 23):
"_Provided_, That in the case of any posthumous work or of any
periodical, cyclopædic, or other composite work upon which the copyright
was originally secured by the proprietor thereof, or of any work
copyrighted by a corporate body (otherwise than as assignee or licensee
of the individual author) or by an employer for whom such work is made
for hire, the proprietor of such copyright shall be entitled to a
renewal and extension of the copyright in such work for the further term
of twenty-eight years when application for such renewal and extension
shall have been made to the copyright office and duly registered therein
within one year prior to the expiration of the original term of
copyright: _And provided further_, That in the case of any other
copyrighted work, including a contribution by an individual author to a
periodical or to a cyclopædic or other composite work when such
contribution has been separately registered, the author of such work, if
still living, or the widow, widower or children of the author, if the
author be not living, or if such author, widow, widower, or children be
not living, then the author's executors, or in the absence of a will,
his next of kin shall be entitled to a renewal and extension of the
copyright in such work for a further term of twenty-eight years when
application for such renewal and extension shall have been made to the
copyright office and duly registered therein within one year prior to
the expiration of the original term of copyright: _And provided
further_, That in default of the registration of such application for
renewal and extension, the copyright in any work shall determine at the
expiration of twenty-eight years from first publication."

{Sidenote: Extension of subsisting copyrights}

The extension of copyrights subsisting July 1, 1909, is provided for as
follows (sec. 24): "That the copyright subsisting in any work at the
time when this Act goes into effect may, at the expiration of the term
provided for under existing law, be renewed and extended by the author
of such work if still living, or the widow, widower, or children of the
author, if the author be not living, or if such author, widow, widower,
or children be not living, then by the author's executors, or in the
absence of a will, his next of kin, for a further period such that the
entire term shall be equal to that secured by this Act, including the
renewal period: _Provided, however_, That if the work be a composite
work upon which copyright was originally secured by the proprietor
thereof, then such proprietor shall be entitled to the privilege of
renewal and extension granted under this section: _Provided_, That
application for such renewal and extension shall be made to the
copyright office and duly registered therein within one year prior to
the expiration of the existing term."

{Sidenote: Assignee of unpublished manuscripts}

In holding with the Attorney-General that an assignee cannot obtain
renewal, Judge Brown in the U. S. Circuit Court in Rhode Island, in
White Smith _v._ Goff, in 1910, raised but did not decide the
"difficult" question whether, if an author sells his unpublished
manuscript with right to publish and copyright, the new owner as the
original copyright proprietor may claim renewal, or whether the author
might reclaim the right.

{Sidenote: Extension of subsisting renewals}

Under the provisions of the renewal clauses (sec. 24), not only may the
original copyright term of a subsisting copyright be renewed for the
longer term of twenty-eight years instead of fourteen years, but a
subsisting copyright renewal may be extended from the added fourteen
years to the full renewal term of twenty-eight years, and a separate
application form for this latter class of cases is provided by the
Copyright Office.

{Sidenote: Publishers' equities}

In the copyright conferences, it was pointed out by publishers that the
right of the author to renewal, and the implied denial of that right to
an assignee proprietor, placed at serious disadvantage a publisher who
had made investment in plates of an author's works, and would be
deprived of the use of his investment at the end of the original term in
case the author preferred to make arrangements with another publisher
for the renewal term. The Congressional Committee failed, however, to
provide a remedy for this through the proposed Monroe-Smith amendment,
requiring that in such case author and publisher should unite in the
application for renewal. No contract on the part of an author can give a
publisher the right to claim copyright renewal under the new code,
although a contract to make claim for the renewal period and transfer
the copyright for the renewal period to the publisher, might be enforced
by the courts through a writ requiring the author to enter such claim
and assign the renewed copyright in accordance with the contract. When a
copyrighted work is sold "outright," it therefore does not include
renewal of the copyright, and unless the author registers his renewal
claim, the right to renewal lapses.

{Sidenote: Estoppel of renewal}

Where an author has sold "outright" all his right, title and interest in
his work, it is possible that this may estop him from application for
renewal or invalidate a renewal, but this question must be decided by
the courts when a case arises. It is important that any contract between
author and publisher should be clear and specific on this vexed question
of rights for the renewal term. No provision is made for notification of
renewal in the copyright notice, and therefore, after the expiration of
the original term, information must be sought from the Copyright Office
as to whether there has been renewal extension of the term. As it would
be hazardous to omit the original copyright notice or to replace it by
one giving the date of renewal, which might be construed to involve
claim of a longer term and thus defeat itself, it may prove the wiser
course to add to the official original notice, the unofficial notice
"Copyright renewed, 19__."

{Sidenote: Life term and beyond}

The international copyright convention, as modified at the Berlin
conference of 1908, adopted the term of life and fifty years,--previously
in force in France and fourteen other countries,--subject to adoption by
domestic legislation. A term of life and a specified number of years
after the death of the author, preferably fifty years for personal
works, and a term of fifty years for impersonal works, was advocated by
the American Copyright leagues and other friends of copyright and was in
the early drafts of the new copyright code.

It was pointed out that Emerson, Longfellow, Lowell, Whittier, Holmes
and others outlived their earlier copyrights; that Edward Everett Hale,
whose "Man without a country" did for this nation a patriotic service
scarcely second to that of the great generals of the civil war, had no
longer copyright in this work, although private soldiers, their relicts
and descendants, were still paid pensions; and that many others of our
foremost authors had been, or under the present system would be,
deprived of their created property within their lifetime. The term
advocated provides for the author and his children's children during the
probable minority of the grandchildren, a period to which the entail of
realty is limited by our laws. But the final decision of the
Congressional Committees was for the simpler, though in other respects
less satisfactory, period of twenty-eight years, as heretofore, with a
renewal period of a second twenty-eight years, under the limitations
above cited. No other countries, except Canada and Newfoundland,
following our example, have this double or renewal term.

{Sidenote: Unpublished works}

As a lecture or other work intended for oral delivery or a dramatic or
musical work or a work of art, an unpublished dramatic or musical work
or a work of art not reproduced in copies for sale is copyrightable
without reference to date of publication, it is not altogether certain
whether the term extends from the date of registration or the date of
first delivery, performance or exhibition, or whether the statutory law
now protects such a work under common law as unpublished, pending
publication and therefore for an indefinite period if not practically in
perpetuity. The Copyright Office issues a certificate for twenty-eight
years, but without reference to initial date, which would be presumably
the date of the certificate. The Copyright Office will doubtless, under
this precedent, issue renewal certificate for the second term of
twenty-eight years.

{Sidenote: Publication as date of copyright}

As the new copyright code makes publication with notice the basis of
copyright instead of entry and deposit, as formerly, the term of
copyright now dates from publication, and "the date of publication" is
specifically defined (sec. 62) as "the earliest date when copies of the
first authorized edition were placed on sale, sold, or publicly
distributed by the proprietor of the copyright or under his authority."
Such date is included in the application for registry at the Copyright
Office, and on the same day twenty-eight years or fifty-six years
thereafter the copyright ends. A provision for terminating copyrights at
the end of the calendar year of expiration was included in the early
drafts of the code, but was not included in the law as enacted.

{Sidenote: Serial publication}

In the case of works published and copyrighted as serials, as a novel
published in parts in a monthly magazine, the copyright runs technically
from the first publication of each part; and at the end of the
twenty-eight or fifty-six years, each part could be successively
published at monthly intervals free from copyright. Practically,
however, such a copyrighted serial could not be published complete until
twenty-eight or fifty-six years from the publication of the last part.
In usual practice a novel is printed in book form a month or two before
its completion as a serial in a magazine, and the date of the copyright
on the completed work would then terminate at the end of the
twenty-eight or fifty-six years from publication in book form.

{Sidenote: Joint authorship}

The use of the date of publication as the beginning of the copyright
term and the specification of twenty-eight years and twenty-eight years
for its duration, obviates questions as to anonymous and pseudonymous
works, composite works or works of joint authorship. The earlier drafts
of the bill, providing for a term through and beyond life, made the
lifetime of the last surviving author the basis for the term of
copyright on works of joint authorship. This method was interestingly
applied in the German courts, when it was held as to the opera "Carmen"
that Bizet's music was out of copyright, but that the libretto was
protected because one of its three joint authors was still living.

{Sidenote: Termination by forfeiture or laches}

A copyright is terminated _ipse facto_ by forfeiture as provided in the
act, either because of failure to deposit copies after notice from the
Copyright Office (sec. 13), or because of false affidavit of American
manufacture (sec. 17). It may also be terminated by _laches_, that is,
carelessness in protecting one's rights, as by omission of the notice,
unless by accident or mistake, from particular copies (sec. 20).

{Sidenote: Abandonment}

A copyright may be terminated by voluntary abandonment or purposed
dedication as well as by expiration, forfeiture or _laches_. Thus in
1854 Congress purchased for $10,000 the copyright of Sumner's new method
of ascertaining a ship's position, dedicated the method to general
public use, and extinguished the copyright. The Copyright Office has no
authority to recognize annulments, but it has noted request for
annulment when received on the registry. In 1910 the Oxford University
Press, American Branch, formally notified the Treasury Department that
they abandoned the copyright on Oxford Cyclopædic Concordance
copyrighted by them in 1903, and collectors of customs were accordingly
authorized by circular letter of January 25, 1910, to permit importation
"of any copies of the said work with the notice of the copyright
obliterated, or a notice of the abandonment of the copyright plainly
printed upon the same page with the notice of copyright and adjacent
thereto." This last was a curious "boomerang" effect of the
manufacturing clause as extended to binding in the act of 1909.

{Sidenote: In England}

In England the term of book copyright has been the life of the author
and seven years after his death, or forty-two years from first
publication, whichever the longer. The copyright in other articles has
varied according to specific laws. The Copyright Commission of 1876
proposed, for all copyright articles as well as books, a term of life
and thirty years after the author's death, according to the German
precedent, or in case of anonymous and posthumous books and
encyclopædias, thirty years from the date of deposit in the British
Museum, an anonymous author to have the right during the thirty years to
obtain the full term by publishing an edition with his name. The English
law contained a specific provision that in the case of articles in
periodicals (but not in an encyclopædia) the right to publish in
separate form should revert to an author after twenty-eight years; the
Commission proposed a term of three years, during which time also the
author as well as the general owner may bring suit against piracy. The
English committee appointed to make recommendations in respect to the
adoption of the Berlin provisions of 1908 through domestic legislation,
however, reported strongly in favor of a general term of life and fifty
years; and this term has been adopted in the new code.

{Sidenote: The new British code}

This general term of "the life of the author and a period of fifty years
after his death" holds "unless previously determined by first
publication elsewhere." In joint authorship, copyright shall subsist
during the life of the author who first dies and fifty years after or
during the life of the author who dies last, whichever the longer. In
posthumous works, copyright subsists for fifty years from first
publication or performance, whichever the earlier. Anonymous and
pseudonymous, and corporate works are not named in the act, and the term
is presumably fifty years, unless in the former cases identity is
disclosed. For photographs and mechanical music reproductions as such,
the term is fifty years from the making of the original negative or the
original plate. Existing copyrights are extended through the new period;
but for the extended term the rights revert to the author, though an
assignee may require continuance of the assignment or continue to
publish on royalties, as determined by agreement or arbitration.
Assignments, except for parts of collective works, terminate in
twenty-five years, when rights revert to the heirs.

{Sidenote: Perpetual copyright}

The Crown has held an exclusive and perpetual right to license the
printing of the Bible, Book of Common Prayer, ordnance surveys, and
possibly the Acts of Parliament; and specified universities and colleges
were assured perpetual copyright in works given or bequeathed to them
unless given for a limited term, but the right lapsed into the usual
copyright term unless the work were printed on their own presses and for
their own benefit. Under the new code, "without prejudice to any rights
or privileges of the Crown," any work prepared or published for His
Majesty or any Government department has copyright for fifty years from
first publication--the effect of which provision on Crown perpetual
copyrights is not clearly evident. A saving clause protects the
universities "in any right they already possess," inferentially limiting
their future copyrights to the statutory term. After the death of the
author of a literary, dramatic or musical work, on complaint of the
withholding of the work from publication or performance, the Judicial
Committee of the Privy Council may require the owner to grant a license
to reproduce or perform the work in public under conditions determined
by the Committee. After twenty-five years, or in the case of existing
copyrights thirty years from the author's death, the work may be
reproduced by any person on prescribed notice in writing of his
intention and payment of ten per cent on the published price in
accordance with regulations by the Board of Trade.

{Sidenote: Other countries}

{Sidenote: International standard term}

Perpetual copyright is granted by the laws of other countries, Mexico,
Guatemala, Nicaragua and Venezuela, while in Montenegro, Egypt, Liberia,
Honduras, the Dominican Republic, Paraguay and Uruguay, which give
copyright protection without specific legislation under a crude civil or
common law enforced by the courts, the term is indefinite. A copyright
term extending eighty years beyond the death of the author is granted by
Spain, Cuba, Colombia and Panama. The French precedent of fifty years
after the author's death was followed by Belgium, Russia and the
Scandinavian countries, Hungary, Portugal and some others, and was
adopted by the Berlin convention as the international standard term; the
German precedent of thirty years beyond death was followed by Austria,
Switzerland and Japan, while the British precedent of seven years beyond
death or forty-two years from publication, whichever the longer, was
followed in many of the English colonies and in Siam. Italy has a
curious term of life or at least forty years after publication, with a
second period of forty years during which, though the exclusive rights
lapse, the author enjoys a royalty of five per cent on publication
price. Haiti has the curious term of the life of the author and twenty
additional years for widow or children, or ten years for other heirs. In
Holland fifty years or life, in Brazil fifty years from the preceding
January 1st, and in Greece fifteen years are specified.

{Sidenote: Special categories}

In many countries there are special terms for special categories of
works, as for anonymous, pseudonymous, and corporate works,
translations, photographs and telegraphic dispatches--the latter for a
stated number of hours.



IX

FORMALITIES OF COPYRIGHT: PUBLICATION, NOTICE, REGISTRATION AND DEPOSIT


{Sidenote: General principles}

Copyright may inhere as a natural right, as under English common law
before the statute of Anne, without record or formalities, but also
without statutory protection; or formalities may be required only as a
prerequisite to protection by actions at law; or formalities may be
required to validate and secure the copyright. English formalities
belong to the second class. American formalities are of the third class,
and without them copyright does not exist.

{Sidenote: Previous American requirements}

The American copyright law of 1909 prescribes exactly the method of
securing copyright, and makes clear the cases in which non-compliance
invalidates copyright. Previous to 1909 copyright was secured by
complying exactly with the statutory requirements of (1) the delivery to
the Librarian of Congress on or before the day of publication, in this
or any foreign country, of a printed (including typewritten) copy of
title or description of the work, (2) the insertion in every copy
published of the prescribed copyright notice, and (3) the deposit not
later (under the law of 1891) than such day of publication (earlier law
allowing ten days after publication) of two copies of the best edition
of a book or other article, or a photograph of a work of art (as to date
of deposit of which last the law was not explicit); and any failure to
comply literally and exactly with these conditions forfeited the
copyright.

{Sidenote: Present American basis}

The American code of 1909 substitutes an entirely different basis for
securing copyright. Copyright now depends upon (1) publication with the
notice of copyright, and (2) deposit of copies, these copies in the case
of books and certain other works to be manufactured within the United
States. The accidental omission of the copyright notice from "a
particular copy or copies" does not invalidate the copyright though it
may relieve an innocent trespasser from penalty as an infringer; but
failure to deposit within a specified time, or false report as to
manufacture, makes the copyright not valid.

{Sidenote: Provisions of 1909}

The general provisions as to formalities are as follows (sec. 9): "That
any person entitled thereto by this Act may secure copyright for his
work by publication thereof with the notice of copyright required by
this Act; and such notice shall be affixed to each copy thereof
published or offered for sale in the United States by authority of the
copyright proprietor, except in the case of books seeking _ad interim_
protection under section twenty-one of this Act"; and (sec. 10): "That
such person may obtain registration of his claim to copyright by
complying with the provisions of this Act, including the deposit of
copies, and upon such compliance the Register of Copyrights shall issue
to him the certificate provided for in section fifty-five of this Act."

{Sidenote: Publication}

The definition in the act (sec. 62) of "the date of publication" as "the
earliest date when copies of the first authorized edition were placed on
sale, sold, or publicly distributed by the proprietor of the copyright
or under his authority" defines publication, and the clause (sec. 9)
requiring the copyright notice to be affixed to each copy "published or
offered for sale in the United States by authority of the copyright
proprietor" confirms the principle that the copyright proprietor cannot
be held responsible, nor can copyright be voided because of copies
"published," offered, sold or distributed without his authority. The
Copyright Office Rules and Regulations (23) add to the definition of
publication the parenthetical explanation: "(_i. e._, so that all
persons who desire copies may obtain them without restriction or
condition other than that imposed by the copyright law)." It is
questionable, however, whether this explanation does not go beyond the
letter of the law. In Stern _v._ Remick, in 1910, the U. S. Circuit
Court protected the copyright of a song, though only one copy had been
offered for sale and sold. Advance distribution to the trade or of
review copies would not constitute publication. While the law does not
prescribe first publication in this country, it is at least doubtful
whether a book published in another country prior to publication here,
unless protected by international copyright relations, has not fallen
into the public domain and thus forfeited copyright protection here.

{Sidenote: Copyright notice}

The first step in securing copyright, being publication "with the notice
of copyright" "affixed to each copy published or offered for sale in the
United States by authority of the copyright proprietor," the method and
form of this notice is of first importance. The act of 1909 provides
(sec. 18): "That the notice of copyright required by section nine of
this Act shall consist either of the word 'Copyright' or the
abbreviation 'Copr.,' accompanied by the name of the copyright
proprietor, and if the work be a printed literary, musical, or dramatic
work, the notice shall include also the year in which the copyright was
secured by publication. In the case, however, of copies of works
specified in subsections (f) to (k), inclusive, of section five of this
Act, the notice may consist of the letter C inclosed within a circle,
thus: ©, accompanied by the initials, monogram, mark, or symbol of the
copyright proprietor: _Provided_, That on some accessible portion of
such copies or of the margin, back, permanent base, or pedestal, or of
the substance on which such copies shall be mounted, his name shall
appear. But in the case of works in which copyright is subsisting when
this Act shall go into effect, the notice of copyright may be either in
one of the forms prescribed herein or in one of those prescribed by the
Act of June eighteenth, eighteen hundred and seventy-four."

{Sidenote: Previous statutory form}

Under the law of 1874, the prescribed notice was in the old form (Rev.
Stat. 4962), "Entered according to Act of Congress, in the year ----, by
A. B., in the office of the Librarian of Congress, at Washington," with
the optional alternative of the form "Copyright, 18--, by A. B." Under
the new code the latter form is preserved, with the alternative of the
provision "Copr.," with date and name, but the longer form may be used
on books copyrighted under the earlier acts, even if reprinted after the
passage of the later act. Except for books previously copyrighted, the
longer form is not now the legal notice, and its use would be dangerous,
as it does not contain the specific word copyright, or its abbreviation,
now made an obligatory part of the notice. While in Osgood v. Aloe in
1897, the omission of the name from the notice, though on the
title-page, and in Record & Guide Co. _v._ Bromley in 1910, the omission
of the date, though indicated by the date of the periodical in the line
below, were held to void the copyright, such addition as the words
"published by" has been held, as in Hills v. Hoover in 1905, a mere
superfluity not voiding copyright.

{Sidenote: Exact phraseology required}

The exact phraseology and order of words must be followed, and it has
been held that any inaccuracy in the name of the copyright proprietor,
as in the English case of Low _v._ Routledge, by Vice-Chancellor
Kindersley, in 1864, or in the date of the entry, as in the American
case of Baker _v._ Taylor in 1848, when 1847 was put for 1846, makes the
copyright invalid.

{Sidenote: Name}

The name in the copyright notice (C. O. Rule 24) must be the real name
of a living person or of a firm or corporate body or the trade name in
actual use, and may not be a pseudonym or pen-name or other
make-believe. A copyright notice should not be in the name of one person
for the benefit of another; the beneficiary's name should be the one
printed. A publisher may take out a copyright for an author, however, in
which case the publisher's name and not the author's name will be given,
unless the publisher makes application as the agent of the
author-claimant. The name in the copyright notice must correspond fully
with the real name as given in the application, but an objection that N.
Sarony instead of Napoleon Sarony was not the real name, was quashed in
1884, in Burrow-Giles Lith. Co. _v._ Sarony, by the U. S. Supreme Court.

{Sidenote: Date}

The date of copyright notice, being that of publication, should
correspond with the imprint date on the original edition; but on later
printings or editions, where the date of imprint is changed, the
copyright notice would of course show the earlier date of the original
edition. Thus a book first published in 1911 could not bear copyright
notice of 1910 date, which would mean that copyright was registered
before instead of after publication, which is not possible under the new
law; nor should an edition of 1910 bear copyright notice of 1911, as the
application and notice should state the actual year of publication; and
the date of 1911 in imprint where the copyright notice is of 1910, would
be correct only on a later edition, as above stated. A book may be
printed, however, in a certain year and not published till a later year,
in which case the copyright notice would be of later date than the
imprint date; thus the Copyright Office registered in 1910, under the
new law, a copyright on a work with the imprint of 1904, on assurance
that though printed in 1904, the work was not actually published until
1910. Under the old law, where, as stated above, a copyright notice
later than the actual copyright was disallowed as claiming protection
beyond the copyright term, a later decision, in 1888, in Callaghan _v._
Myers, held, that where a copyright notice gave the year 1866, while the
true date was 1867, there was no harm done to the public, because a year
of the copyright, which really ended in 1895 instead of 1894, was given
to the public, whereas in the previous case an additional year was
claimed. Doubt was thrown upon this decision by Judge Wallace in
Schumacher _v._ Wogram, also in 1888. In Snow _v._ Mast in 1895, the
substitution for 1894 of the abbreviated '94, and in Stern _v._ Remick
in 1910, the use of words or Roman numerals for Arabic, were upheld.

{Sidenote: Accidental omission}

An important safeguard, new in copyright law, is enacted in the
provision (sec. 20): "That where the copyright proprietor has sought to
comply with the provisions of this Act with respect to notice, the
omission by accident or mistake of the prescribed notice from a
particular copy or copies shall not invalidate the copyright or prevent
recovery for infringement against any person who, after actual notice of
the copyright, begins an undertaking to infringe it, but shall prevent
the recovery of damages against an innocent infringer who has been
misled by the omission of the notice; and in a suit for infringement no
permanent injunction shall be had unless the copyright proprietor shall
reimburse to the innocent infringer his reasonable outlay innocently
incurred if the court, in its discretion, shall so direct."

{Sidenote: Place of notice}

It is further provided (sec. 19): "That the notice of copyright shall be
applied, in the case of a book or other printed publication, upon its
title-page or the page immediately following, or if a periodical either
upon the title-page or upon the first page of text of each separate
number or under the title heading, or if a musical work either upon its
title-page or the first page of music: _Provided_, That one notice of
copyright in each volume or in each number of a newspaper or periodical
published shall suffice."

Although the code of 1909 relieves the copyright proprietor from
permanent forfeiture in the case of an accidental omission of the
copyright notice from certain copies (sec. 20), the statute is otherwise
specific, and there seems to be no means of relief where the copyright
notice is, however innocently, in the wrong place or in the wrong form.
Thus in 1909, in Freeman _v._ Trade Register, the U. S. Circuit Court
held that where the copyright notice of a periodical appeared on the
editorial page, which was not the first page of text, the copyright was
voided. The copyright notice can probably, however, be placed safely and
preferably on the first page, being the title-page, of a specially
copyrighted part of a book, as an introduction preceding a non-copyright
work or an index or appended notes, or upon specific illustrations; and
this is perhaps preferable in copyrighting editions with such features
of works otherwise in the public domain. In the case of articles in a
periodical or parts of a composite work separately copyrighted or
registered, the copyright notice should appear on the same page as the
title heading.

{Sidenote: One notice sufficient}

The proviso (sec. 19) that one notice of copyright in each volume or in
each number of a periodical shall suffice is complementary to the
provision (sec. 3) by which a copyright protects all the copyrightable
component parts of the work copyrighted, and gives to the proprietor of
a composite work or periodical all the rights he would have if each part
were individually copyrighted. It means that there need be no repetition
of the general copyright notice on different portions of a book or
periodical. In West Pub. Co. _v._ Thompson Co., under the old law, Judge
Ward, in the U. S. Circuit Court of Appeals in 1910, overruled the
defense that the copyright was not valid because the copyright notice
did not repeat the several copyright notices originally protecting the
several parts of the compilation; and this view, that the general
copyright notice protects all copyrighted and copyrightable parts, is
now specifically embodied in the statute.

{Sidenote: Separate volumes}

{Sidenote: Different dates}

The proviso (sec. 61) "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" indicates that one copyright entry suffices for several
volumes simultaneously published, but each separate volume should
contain the notice. Volumes published separately, not only in successive
years but at successive dates within the year, should be separately
registered, and if published separately in successive years, must each
bear its copyright notice for the year of publication--this being the
direct sequence from the provision that copyright runs from the specific
date of publication and not from the year or date of registration. The
Copyright Office will, however, under the law, register for one fee
volumes or parts deposited at the same time, though published at various
times. In the case of a book issued in successive parts, of which only
the first part includes a title-page or title headings, the law is not
specific; but it seems probable that, in default of copyright notice and
registration for each part, the parts not bearing copyright notice might
be legally reprinted, and that the safer course is to place the
copyright notice on the first page of each part and register each part
separately, in which case the completed work should have the date or
dates of the year or years within which the several parts were
published. There seem to be no objections, within the law or from court
decisions, to coupling two dates in the same notice, in such cases as
"Copyright, 1910, 1911, by A. B.," though there is no specific decision
on this point. Under the previous law a book published in more than one
volume or part, the portions not complete in themselves, was probably
protected by copyright entry of the first part, all parts being of
course ultimately deposited; but the change in the new code basing
copyright on publication with notice, seems to change this rule of
practice. In the case of Dwight _v._ Appleton, in 1840, it was held that
as the statute did not expressly prescribe that the copyright notice
should appear in successive volumes after the first, this was not
necessary; but the application of this doubtful decision under the new
code would be more than questionable.

{Sidenote: Notice part of initial step}

It may be emphasized that publication with notice is the first step in
copyright under the new code, and that registration on deposit is the
secondary and completing act, and therefore that no registry in the
Copyright Office is necessary to authorize the printing of the copyright
notice, as was formerly the case.

{Sidenote: Extraterritorial notice}

The requirement (sec. 9) that the notice of copyright "shall be affixed
to each copy published or offered for sale in the United States by
authority of the copyright proprietor" makes clear what was a subject of
dispute under the old law. The courts, however, generally held that
extraterritorial notice of copyright, _i. e._ on foreign editions, was
impracticable and unnecessary; and this view is specifically adopted in
the new code. In 1905, in Harper _v._ Donohue, it was held by Judge
Sanborn, in the U. S. Circuit Court, that the omission of the American
copyright notice from an English edition could not vitiate copyright
here, especially in view of the prohibition in the law of the
importation of foreign-made copies of copyright works. In 1908, in
Merriam _v._ United Dictionary Co., it was held by the U. S. Supreme
Court, through Justice Holmes, that even where the omission of the
notice on a foreign-made edition was with the assent of the American
copyright proprietor, there was no waiver of copyright in this country.

{Sidenote: Successive editions}

In the case of successive printings or editions of a copyrighted book,
the original copyright entry must appear in every reprint of the first
edition; and it would seem that this entry should also appear in every
new edition newly copyrighted, as well as the new notice, so long as it
is desired to protect the matter contained in the old edition. Judge
Clifford, in the U. S. Circuit Court, in Lawrence _v._ Dana, in 1869,
ruled this to be superfluous; but his decision is contrary to the rule
that a proprietor may not claim through the copyright notice a longer
term than the law permits, since a later date, referring only to new
matter, but apparently comprehensive of the whole contents, might be
voided under this rule. It is doubtful whether on a new edition with old
and new matter one copyright notice with two dates is safe, and the
wiser course is to give both the earlier copyright notice and the later
notice in proper sequence. In the case of new printings of works
published and copyrighted prior to July 1, 1909, no new notice or
application is required unless there is added material to be
additionally protected and constituting to that extent a new work, in
which case a new application and the deposit of two copies is necessary.

{Sidenote: False copyright notice}

Provision is specifically made against false notice of copyright by the
enactment (sec. 29): "That any person who, with fraudulent intent, shall
insert or impress any notice of copyright required by this Act, or words
of the same purport, in or upon any uncopyrighted article, or with
fraudulent intent shall remove or alter the copyright notice upon any
article duly copyrighted shall be guilty of a misdemeanor, punishable by
a fine of not less than one hundred dollars and not more than one
thousand dollars. Any person who shall knowingly issue or sell any
article bearing a notice of United States copyright which has not been
copyrighted in this country, or who shall knowingly import any article
bearing such notice or words of the same purport, which has not been
copyrighted in this country, shall be liable to a fine of one hundred
dollars," and the importation of any article bearing a notice of
copyright when no American copyright exists is absolutely prohibited
(sec. 30).

{Sidenote: Ad interim protection}

It should be noted that the copyright notice is not required on books
published abroad in the English language before publication in this
country, entered for _ad interim_ copyright, and therefore that within
sixty days after the publication abroad of a book in the English
language, such book may be protected by American registration, though
containing no notice of copyright; and within this period inquiry at the
Copyright Office is necessary to determine the status of the book.

{Sidenote: Substitution of name}

It is provided (sec. 46): "That when an assignment of the copyright in a
specified book or other work has been recorded the assignee may
substitute his name for that of the assignor in the statutory notice of
copyright prescribed by this Act." This applies only where the entire
copyright has been assigned and the assignment duly recorded in the
Copyright Office as provided by law, and does not permit a change of
name in the copyright notice under any other circumstances, as partial
assignment. Substitution without authority of law voids copyright, as
was held in Record & Guide Co. _v._ Bromley in 1910, where another trade
name of the copyright claimant was substituted for the original trade
name.

{Sidenote: Registration}

The method of registration, or rather of application therefor, is not
specified in the law, for the reason that under the code of 1909 deposit
succeeding publication is made the act completing the securing of
copyright, and registration is incidental thereto instead of the first
requisite. Under the old law it was decided in the U. S. Circuit Court
through Judge Colt, in Gottsberger _v._ Estes, that publication before
deposit of copies voided the copyright.

{Sidenote: Rules and regulations}

The act provides (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," and (sec. 54) "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: Application}

It is provided (sec. 5): "That the application for registration shall
specify to which of the [stated] classes the work in which copyright is
claimed belongs," but it is also provided "nor shall any error in
classification invalidate or impair the copyright protection." In Green
_v._ Luby, in 1909, the U. S. Circuit Court protected a vaudeville
sketch, though classified as a dramatic instead of a dramatico-musical
copyright, against infringement by a mimic performance.

{Sidenote: Certificate}

It is further provided (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, 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: Application requirements}

The application is in general in simple form, and care should be taken
in filling out the card that the space at the top intended for use by
the Copyright Office should be left blank. The application must be
signed with the name and address of the copyright claimant, who may be
the author or his representative, as where his publisher is taking out
the copyright. In the case of works made for hire, the employer may make
application as author. The name of the author should be given on the
line provided for that purpose, even though the name of the author as
claimant is also given above; but in the case of anonymous or
pseudonymous works, the name of the author is not required. The title
should be given exactly as on the title-page of the book or on the work,
and the other particulars called for in the application should be
exactly as indicated by the work itself. The day of publication must be
exactly stated, and the application cannot be made, therefore, until
_after_ publication. Provision is also made on the card for the name and
address of the person to whom the certificate of registration is to be
sent and of the remitter of the fee, and in the case of books, the
application must be accompanied by the affidavit made either on the
reverse of the application card or on the separate card also provided.
In applications, as for foreign or _ad interim_ copyright, where the
nationality of the author should be stated, information as to
citizenship, not race, is required. A person naturalized in the United
States is defined as an American. A foreign author claiming copyright
because of residence, must state that he is a "permanent resident" of
the United States (C. O. Rule 29).

{Sidenote: Illustrations}

The illustrations of a book may be separately registered, and if by
lithographic or photo-engraving process must also have affidavit of
manufacture in this country.

Maps and charts are classed with works of art, and the formalities in
respect to these, as well as in respect to dramatic and musical
compositions, are treated specifically in the chapters on those specific
subjects.

{Sidenote: Periodicals}

In respect to periodicals, application should be made as for books, but
no affidavit is required; separate registration is necessary for each
number published, with notice of copyright, and can be made only after
publication. It is not possible to register the title of the periodical
in advance of publication. (C. O. Rule 36.) Two deposit copies of
periodicals are required; but a contribution to a periodical separately
registered requires the deposit of only one copy of the periodical. The
entire copy should be sent, as a mere clipping does not comply with the
statute. (C. O. Rule 37.) The date of publication of a periodical is not
necessarily the printed date of issue, and the actual day of publication
should be stated in the application, whether for the registration of the
periodical itself or a contribution to it.

{Sidenote: Application cards}

The Copyright Office has prepared blank forms in library card shape,
which are furnished applicants free of charge, for the several classes
of applications mentioned in the law, the cards being in _pink_, except
as hereafter stated, lettered and numbered as follows: (A1) book by
citizen or resident of the United States; (A1. New ed.) new edition of
book by citizen or resident of the United States; (A1 for.) book by
citizen or resident of a foreign country, but manufactured in the United
States; (A2) edition printed in the United States of book originally
published abroad in the English language, all these being double cards
including affidavit of American manufacture--supplemented by _blue_
cards providing with specific instructions, (A1) for separate affidavit
of American manufacture from type set or plates made in the United
States, and (A2) for lithographic or photo-engraving process within the
United States; (A3) book by foreign author in foreign language; (A4) _ad
interim_ copyright--book published abroad in the English language; (A5)
contribution to a newspaper or periodical; (B1) periodical,--for
registration of single issue; (B2) periodical,--general application and
deposit, supplemented by a _white_ blank for depositing single
subsequent issues; (C) lecture, sermon, or address prepared for oral
delivery; (D1) published dramatic composition; (D2) dramatic composition
not reproduced for sale; (D3) dramatico-musical composition; (E1)
published musical composition; (E2) musical composition not reproduced
for sale--these supplemented by a _blue_ card (_U_), notice of use on
mechanical instruments; (F) published map; (G) work of art (painting,
drawing, or sculpture), or model or design for a work of art; (H)
reproduction of a work of art; (I) drawing or plastic work of a
scientific or technical character; (J1) photograph published for sale;
(J2) photograph not reproduced for sale; (K) print or pictorial
illustration; (R1) renewal of copyright subsisting in any work; (R2)
extension of a renewal copyright subsisting in any work. Thus an
applicant for copyright on an American book should send for card (A1),
on which he may enter his application and also include affidavit as to
American type setting, printing, and binding; if he wishes the affidavit
to be separately made he should obtain also the special _blue_ card
(_A_1), or if lithographic or photo-engraving is used he should obtain
also the special _blue_ card (_A_2). A dramatic applicant should send
for card (D1) or card (D3), respectively, for the entry of a dramatic or
dramatico-musical composition; or for (D2) if he desires to copyright
without reproducing for sale. The applicant for a musical composition,
as distinguished from a dramatico-musical work, should send for card
(E1) or (E2) respectively. The art applicant should send for card (G)
for an original work of art, or card (H) for a reproduction, or for a
photograph card (J1) or card (J2) respectively.

{Sidenote: Certificate cards}

Similar certificate cards, also of library size, uniformly _white_, are
provided for the several classes of registration, correspondingly
lettered and numbered, except in a few cases where one certificate form
serves for more than one class or subdivision, with the addition of a
general form (Z) to cover anything unprovided for in the other
certificate forms. The certificate bears on one side the uniform
statement of the deposit of two copies or one copy of the article named
herein, and of registration for the first or renewal term, with the name
of the claimant (printed in the case of a few of the publishers making
most applications), and on the other side the specification (following
the wording of the application and the deposit copy) of the title or
description, date of publication, receipt of affidavit (where required),
receipt of copies and entry number by class, together with the seal of
the Copyright Office.

{Sidenote: Fees}

This certificate is sent without charge other than the fees directly
provided for in the law (sec. 61), viz., "for the registration of any
work subject to copyright, deposited under 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 the
extension or renewal of copyright provided for in sections twenty-three
and twenty-four of this Act, fifty cents." The law no longer
contemplates record before publication, and it is unnecessary and
undesirable to send application or money previous to sending of deposit
copies. In fact, as the certificate must show date of publication,
publication _cannot_ be anticipated, and money sent in advance, for
individual registrations, is only an embarrassment to the Copyright
Office. The Office will, however, receive advance deposits from
publishers of periodicals or other publishers making frequent
registrations, against which each registration will be charged. Fees
should be sent by money order, or at the remitter's risk, in currency
(but not in stamps). Bank drafts and certified checks are accepted in
practice, though the Register of Copyrights cannot legally receive
checks except at his personal risk and therefore from persons known to
him as in frequent relation with the Copyright Office. Postage must be
prepaid on the signed application, as there is no provision for free
transmission through the mails, such as applies to deposit copies. In
practice the application with remittance and the deposit copies should
be simultaneously sent immediately after publication.

{Sidenote: Deposit}

The law provides that deposit copies shall be sent _promptly_ after
publication, and that _two complete_ copies of the _best_ edition then
published (or one copy in case of a contribution to a periodical or for
identification of a work not reproduced for sale) shall be deposited;
and if a work is published with notice of copyright, and copies are not
promptly deposited, the copyright is voided and the proprietor becomes
subject to penalty three months (or in case of outlying possessions or
foreign countries six months) after formal demand by the Register of
Copyrights for deposit copies. The word "promptly" is indefinite and has
been vaguely construed to mean "without unnecessary delay," but this
does not mean the very day of publication (C. O. Rule 22). The status of
undeposited works published with copyright notice and not formally
demanded by the Register of Copyrights, is also not defined by the law.
In such case the copyright has not been perfected by the completing act,
and it would be impracticable to proceed against an infringer, and the
proprietor might be liable to penalty for false notice of copyright. In
the event of such a case arising, through carelessness or otherwise, the
courts would have to decide the question by definition of the word
"promptly" and an interpretation of the implication that copyright is
voided, meaning that the right to obtain copyright lapses, if the
process is not completed without undue delay.

{Sidenote: Fragment not depositable}

The deposit copy must be the complete work; a fragment is not a work,
and a part of a work cannot be copyrighted, especially as this would
nullify the manufacturing clause, as set forth in the opinion of the
Attorney-General, February 9, 1910.

{Sidenote: Typewriting publication and deposit}

A work may be published and deposited in typewriting copies, as set
forth in the opinion of the Attorney-General of May 2, 1910, but this
will not operate to avoid the manufacturing clause when the work is
published in print.

{Sidenote: Legal provisions}

The completion of the copyright by deposit of copies is covered by the
provision (sec. 12): "That after copyright has been secured by
publication of the work with the notice of copyright as provided in
section nine of this Act, there shall be promptly deposited in the
Copyright Office or in the mail addressed to the Register of Copyrights,
Washington, District of Columbia, two complete copies of the best
edition thereof then published, which copies, if the work be a book or
periodical, shall have been produced in accordance with the
manufacturing provisions specified in section fifteen of this Act; or if
such work be a contribution to a periodical, for which contribution
special registration is requested, one copy of the issue or issues
containing such contribution; or if the work is not reproduced in copies
for sale, there shall be deposited the copy, print, photograph, or other
identifying reproduction provided by section eleven of this Act, such
copies or copy, print, photograph, or other reproduction to be
accompanied in each case by a claim of copyright. No action or
proceeding shall be maintained for infringement of copyright in any work
until the provisions of this Act with respect to the deposit of copies
and registration of such work shall have been complied with."

{Sidenote: Voiding by failure to deposit}

In case of failure to deposit, the law of 1909 provides for penalties
and finally voiding of the copyright, as follows (sec. 13): "That should
the copies called for by section twelve of this Act not be promptly
deposited as herein provided, the Register of Copyrights may at any time
after the publication of the work, upon actual notice, require the
proprietor of the copyright to deposit them, and after the said demand
shall have been made, in default of the deposit copies of the work
within three months from any part of the United States, except an
outlying territorial possession of the United States, or within six
months from any outlying territorial possession of the United States, or
from any foreign country, the proprietor of the copyright shall be
liable to a fine of one hundred dollars and to pay to the Library of
Congress twice the amount of the retail price of the best edition of the
work, and the copyright shall become void."

{Sidenote: Forfeiture by false affidavit}

In the case of a printed book or periodical or of a lithograph or
photo-engraving, the copies deposited must be manufactured in America,
as set forth in the manufacturing provision (sec. 15) as verified in the
case of a book by affidavit (sec. 16) separately treated hereafter, and
the book copyright is forfeited (sec. 17) in the event of false
affidavit. Thus failure to deposit, and, in the case of books, false
affidavit as to American manufacture, are the two lapses of formalities
which work forfeiture of copyright.

{Sidenote: Works not reproduced}

In the case of works not reproduced for sale, copyright may be secured
under the provision (sec. 11): "That copyright may also be had of the
works of an author of which copies are not reproduced for sale, by the
deposit, with claim of copyright, of one complete copy of such work if
it be a lecture or similar production or a dramatic or musical
composition; of a photographic print if the work be a photograph; of a
photograph or other identifying reproduction thereof if it be a work of
art or a plastic work or drawing. But the privilege of registration of
copyright secured hereunder shall not exempt the copyright proprietor
from the deposit copies under sections twelve and thirteen of this Act
where the work is later reproduced in copies for sale." The entire work
should in each case be deposited (C. O. Rule 18) and not a mere outline,
epitome or scenario; and the copy should be in convenient form, clean
and legible, with the leaves securely fastened together, and should bear
the title of the work exactly as given in the application.

{Sidenote: Second registration}

It should be noted that in this class of copyright, which is a common
law copyright fortified by statutory protection, an ideal example of
copyright law, double registration is required in case the unpublished
copyrighted work is published, requiring one application fee and deposit
of one identifying copy for the unpublished work and a second
application fee and deposit of two copies promptly after publication.

{Sidenote: Free transportation in mail}

It should be noted that the deposit copies may be deposited either in
the Copyright Office or "in the mail addressed to the register of
copyrights," and it is provided (sec. 14): "That the postmaster to whom
are delivered the articles deposited as provided in sections eleven and
twelve of this Act shall, if requested, give a receipt therefor and
shall mail them to their destination without cost to the copyright
claimant." Franking labels are not required and are no longer issued by
the Copyright Office. Deposit copies, and all mail matter, should be
addressed to the "Register of Copyrights, Library of Congress,
Washington, D. C.," and not to any person by name.

{Sidenote: Loss in mail}

Thus even if the deposit copies should not reach Washington, as in case
they were burned in the mail, the copyright proprietor can validate his
claim by production of the postmaster's receipt in lieu of deposit
copies.

{Sidenote: Foreign works}

In respect to foreign works, it should be noted that "the original text
of a work of foreign origin in a language or languages other than
English," may be formally copyrighted and fully protected by
registration under the same formalities as domestic works except that
the deposit copies need not be manufactured within the United States,
thus giving the author the exclusive right of translation. Copies
published for use in America must of course bear the copyright notice. A
translation into English from such text cannot be copyrighted unless the
deposit copies of the English translation are manufactured within the
United States; and this holds true also in respect to translations into
a language other than English, as it is only "the original text" which
can be copyrighted without American manufacture.

{Sidenote: Ad interim deposit}

In respect to books published abroad in the English language, _ad
interim_ protection is assured by the provision (sec. 21): "That in the
case of a book published abroad in the English language before
publication in this country, the deposit in the Copyright Office, not
later than thirty days after its publication abroad, of one complete
copy of the foreign edition, with a request for the reservation of the
copyright and a statement of the name and nationality of the author and
of the copyright proprietor and of the date of publication of the said
book, shall secure to the author or proprietor an _ad interim_
copyright, which shall have all the force and effect given to copyright
by this Act, and shall endure until the expiration of thirty days after
such deposit in the Copyright Office."

{Sidenote: Completion of ad interim copyright}

On such works the provisional copyright is made permanent under the
provision (sec. 22): "That whenever within the period of such _ad
interim_ protection an authorized edition of such book shall be
published within the United States, in accordance with the manufacturing
provisions specified in section fifteen of this Act, and whenever the
provisions of this Act as to deposit of copies, registration, filing of
affidavit, and the printing of the copyright notice shall have been duly
complied with, the copyright shall be extended to endure in such book
for the full term elsewhere provided in this Act."

The _ad interim_ provision requires the same formalities and fee as in
the case of domestic works, except that only one copy of the foreign
work in English need be deposited, and that this deposit copy need not
contain the statutory notice of American copyright. The claimant is
given thirty days after publication abroad in which to request
reservation and a second thirty days after deposit of the foreign copy
within which to publish or cause to be published an edition manufactured
in America and thus to complete his copyright. This gives a period of
_ad interim_ protection, ranging from thirty days to sixty days, within
which to obtain permanent copyright, the exact period depending upon the
number of days elapsing after publication before deposit of the foreign
copy in the Copyright Office. Thus a copy deposited on the day of
publication will have thirty days in all within which to secure
permanent copyright by the publication of the American-made edition,
while a copy deposited on the thirtieth day after publication will have
sixty days in all; but the failure to deposit the foreign copy within
thirty days after publication, or the failure to publish an
American-made edition within thirty days after such deposit, will
forfeit the right to obtain copyright protection and throw the foreign
work into the public domain, despite the _ad interim_ registration. When
an American-made edition with notice of copyright can be published in
America simultaneously with its publication abroad, _ad interim_
protection is of course rendered unnecessary; and such simultaneous
publication is the simplest and best practice for publishers to adopt.

{Sidenote: Omission of copyright notice}

It may also be emphasized here that the notice of copyright can be
omitted only from foreign-made copies and must be included in the
American-made edition. The American publisher desiring to reprint a book
published abroad in the English language within sixty days after
publication, without consent of the copyright proprietor, must therefore
assure himself, by inquiry from the Copyright Office, whether the work
has been registered _ad interim_. The printing of an American copyright
notice on the foreign edition in anticipation of the publication of an
American-made edition and the deposit of copies thereof within the
statutory requirements is a questionable practice, as a failure to
publish American-made copies in the United States, because of defective
publishing arrangements or a printers' or binders' strike, would make
such notice a false notice of copyright. The copyright term in the case
of such foreign work in the English language dates, it would seem, from
the date of publication abroad rather than from the date of publication
of the American-made edition; but this would be of importance only
toward the expiration of the original term and in connection with the
renewal term.

{Sidenote: Books only ad interim}

_Ad interim_ protection seems to be confined exclusively to a book as
such, and therefore does not apply to articles in periodicals.

{Sidenote: American authors not thus protected}

It should be noted that an American author publishing his work abroad is
not benefited by either of these provisions respecting foreign works.
The provision regarding works in other languages is specifically
confined to a work of foreign origin, that is, not by an American
author; and he gains nothing, if his work is in English, from _ad
interim_ protection. Thus an American author publishing his work first
in German in Berlin, must copyright and deposit an American-made edition
of his German text in this country to obtain American protection,
without which his work in German could be imported into this country
without his consent, and an independent translation of his text into
English and its publication in America could not be prevented.

{Sidenote: Exact conformity required in formalities}

In view of the exact prescription of the method of securing copyright,
unless the statute is precisely complied with the copyright is not
valid. Said Judge Sawyer, in 1875, in Parkinson _v._ Laselle: "There is
no possible room for construction here. The statute says no right shall
attach until these acts have been performed; and the court cannot say,
in the face of this express negative provision, that a right shall
attach unless they are performed. Until the performance as prescribed,
there is no right acquired under the statute that can be violated." And
in the case of the play "Shaughraun," Boucicault _v._ Hart, in 1875,
Justice Hunt held, as regards copyrights in general: "Two acts are by
the statute made necessary to be performed, and we can no more take it
upon ourselves to say that the latter is not an indispensable requisite
to a copyright than we can say it of the former." The Supreme Court laid
down this general doctrine in Wheaton _v._ Peters, in reference to the
statutes of 1790 and 1802, and the later statutes are most explicit on
this point. In the same case of Wheaton _v_. Peters, Justice McLean, in
delivering the judgment of the Supreme Court, held that while the right
"accrues," so that it may be protected in chancery, on compliance with
the first requirement of the prescribed process, it must be perfected by
complying with the other requisites before a suit at law for violation
of copyright can be maintained.

{Sidenote: Expunging from registry}

A false or unjustifiable entry of copyright may be expunged from the
registry by court order, as was done in the English case _Re_ Share
Certificate Book in 1908.

{Sidenote: British formalities}

The statutory formalities of copyright in other countries vary greatly.
In Great Britain copyright has been secured by first (or simultaneous)
publication within the British dominions or under the "international
copyright act." The law provided that a copy of the best edition of a
book must be deposited in the British Museum, this giving basis for
proof of publication, which deposit must be made within one month after
publication if published within London, three months elsewhere in the
United Kingdom, and one year in other parts of the British dominions;
the failure to deposit did not forfeit copyright, but involved a fine;
but under the international copyright provisions, deposit in the British
Museum of a colonial or foreign work was not required, though useful as
_prima facie_ evidence of publication. Four other copies of domestic
books must be supplied to the universities of Oxford, Cambridge,
Edinburgh and Dublin if demanded within twelve months from publication.
Registration at Stationers' Hall was necessary for books only as a
prerequisite to an action at law against infringement, but was
obligatory in the case of paintings, drawings and photographs. Copyright
notice on a book was not required except to reserve the right of
representation of a dramatic work, etc., though it has been customary
for English publishers to print the phrase "All rights reserved" as the
equivalent to the copyright notice. But copyright notice was required to
protect sculpture, engravings and musical compositions and in respect to
oral lectures.

{Sidenote: The new British code}

The new British code bases copyright for all published works on first
publication within "the parts of His Majesty's dominions to which this
Act extends" or as provided for in colonial or international
arrangements--copyright of unpublished works depending upon British
citizenship or residence at the time of making. Delivery of copies to
the British Museum and on demand to the other libraries is required from
the publisher of every book published in the United Kingdom, but on
penalty of five pounds and the value of the book and not of forfeiture
of copyright. The National Library of Wales is entitled to a sixth copy,
in prescribed classes of books. Registration is no longer made a
condition or circumstance of copyright.

Most of the British colonies have followed the precedent of the mother
country, with slight variation, in their domestic legislation. Canada
and Newfoundland, following the precedent of the United States, require
copyright notice in statutory form.

{Sidenote: Other countries}

France requires deposit of two copies upon publication, and registration
is required prior to a suit for infringement. Germany requires the
registration of the name of the author of anonymous or pseudonymous
works as the condition for copyright, but otherwise grants copyright
practically as natural right without requiring formalities. The greater
number of copyright countries do not impose any formalities except for
specific privileges as the right of translation, of representation or of
reproduction in the case of periodical contributions; or for special
subjects as works of art, musical compositions, telegraphic messages,
where these are protected, and oral lectures. Deposit of copies is,
however, generally required, either before putting the book on the
market or before circulation, or upon publication, or else within a
specified time after publication, ranging from ten days in the case of
Greece to two years in the case of Brazil, while in several countries no
specific time is mentioned. In Italy, if no deposit of a registered work
is made within ten years, the copyright is considered to be abandoned.
The number of copies required varies in the several countries from one
to six. In some countries specific formalities are required to establish
the beginning of the term of protection for collective or posthumous
works, etc., or in connection with the disclosure of the author's name
on anonymous or pseudonymous works. Spain, Colombia and Panama, and
Costa Rica have a curious provision that if a work is not registered
within one year from publication the copyright is forfeited for ten
years, at the end of which period it may be recovered by registration.
Canada and Newfoundland, following the United States precedent,
Australia, Holland and the Dutch colonies, and Siam require manufacture
within the country. In several countries penalty for failure to deposit
is provided, the limit being usually the value of a book and a sum not
exceeding £5, or in France 300 francs. The deposit of a photograph or
sketch of a work of art is in many countries required for purposes of
identification.

{Sidenote: International provisions}

International copyright throughout the countries of the International
Copyright Union and the Pan American Union, if the Berlin and Buenos
Aires conventions are ratified throughout, will depend, as now it
depends for most countries, entirely on the formalities in the country
of origin.



X

THE AMERICAN MANUFACTURING PROVISIONS


{Sidenote: Manufacturing provision of 1891}

In the American law of 1891, embodying the "international copyright
amendment" which for the first time permitted the copyright in the
United States of works by foreign authors not resident in this country,
the copyright of books was conditioned on the manufacture within the
United States, and this condition was made applicable also to American
authors.

{Sidenote: Text in 1909 code}

The American code of 1909 follows this precedent in making manufacture
within the United States a _sine qua non_ of copyright for printed books
and periodicals, lithographs and photo-engravings, under the following
provision (sec. 15), commonly cited as the manufacturing provision:
"That of the printed book or periodical specified in section five,
subsections (a) and (b) of this Act, except the original text of a book
of foreign origin in a language or languages other than English, the
text of all copies accorded protection under this Act, except as below
provided, shall be printed from type set within the limits of the United
States, either by hand or by the aid of any kind of type-setting
machine, or from plates made within the limits of the United States from
type set therein, or, if the text be produced by lithographic process,
or photo-engraving process, then by a process wholly performed within
the limits of the United States, and the printing of the text and
binding of the said book shall be performed within the limits of the
United States; which requirements shall extend also to the illustrations
within a book consisting of printed text and illustrations produced by
lithographic process, or photo-engraving process, and also to separate
lithographs or photo-engravings, except where in either case the
subjects represented are located in a foreign country and illustrate a
scientific work or reproduce a work of art; but they shall not apply to
works in raised characters for the use of the blind, or to books of
foreign origin in a language or languages other than English, or to
books published abroad in the English language seeking _ad interim_
protection under this Act."

{Sidenote: Scope and exceptions}

This manufacturing provision requires that every "book" except the
original text of a book of foreign origin, _i. e._, not by an American
writer in a language or languages other than English, or a book
published abroad in the English language seeking _ad interim_
protection, or a book in raised characters for the use of the blind, can
obtain American copyright whether by an American or foreign author, only
in case the type is set, the plates made and lithographic or
photo-engraving text or illustrations produced and the work printed and
bound within the limits of the United States--inclusive, presumably, of
the outlying dependencies. The provision extends to periodicals, though
these are not subjected to the affidavit clause, and periodicals
containing authorized copyrighted material are not prohibited from
importation. The provisions extend also to lithographs or
photo-engravings, issued separately as well as for book illustration,
unless these represent foreign subjects or illustrate a scientific work
or reproduce a work of art.

{Sidenote: Changes 1891-1909}

The provision of 1909 differs from the provision of 1891 in requiring
that a book should be from plates type-set as well as made, and be
printed and bound, within the United States, in adding periodicals and
by omitting photographs and dropping the word chromo, and including
photo-engravings as well as lithographs. The inclusion of binding in the
manufacturing provision met with especial opposition, on the ground that
binding is not an integral part of, but an incidental addition to, a
completed book.

{Sidenote: German-American instances}

The effect of these provisions, to cite specific instances, is that an
original German text by a non-American author is exempt from the
manufacturing provisions, but that a French translation or an English
translation is not, and that an original German work by an American
author must be manufactured in this country to obtain protection, and
that the American author printing his work in English abroad may claim
_ad interim_ protection but can obtain no substantial benefit from it.
In case a German-American citizen, or German resident of this country,
writes a book in the German language and prints it first in Berlin, he
can have no American copyright in the German edition; and if copies of
such an edition, without copyright notice, should reach the United
States previous to manufacture and publication of the work here, any one
would have the right to reprint print it, and the work would be
practically dedicated to the public, while the copyright notice could
not be affixed to such foreign printed edition without violation of the
law. If, however, the German work were a translation made by or for the
author of a work written in English, the general copyright of the
English work would cover the German edition, but the German copies could
not then be imported.

{Sidenote: Dramas excepted}

A drama copyrightable as such under subsection (d) is not subject to the
manufacturing provision, unless classified as a book under subsection
(a). A printed drama was held not to be subject as a book to the
manufacturing provision in Hervieu _v._ Ogilvie, in the U. S. Circuit
Court, by Judge Martin in 1909, and this decision under the old law is
applicable to the new code.

{Sidenote: Exception of foreign original texts}

The exception of "the original text of a book of foreign origin in a
language or languages other than English,"--drafted by the author of the
present volume, introduced at the instance of the American (Authors)
Copyright League, as the McCall bill with the assent of the
representatives of the typographical unions responsible for the
manufacturing provision,--was included to assure a real reciprocity in
copyright with continental and other non-English nations. The exception
is repeated toward the close of the section in the somewhat wider phrase
"books of foreign origin in a language or languages other than English,"
which omits restriction to "the original text"; but it is probable that
the second phrasing would be construed in conformity with the first, as
the evident intention of the law.

{Sidenote: Exception of foreign illustrative subjects}

The exception from lithographs and photo-engravings of subjects which
"are located in a foreign country and illustrate a scientific work or
reproduce a work of art" is intended to permit the importation, either
separately or for book use, of direct reproductions made abroad of
scenes or objects which otherwise could be reproduced in this country
only indirectly and at second-hand; the confusing and probably careless
use of the word "and" might seem to exclude from the exemption a
lithograph or photo-engraving of a natural scene, illustrating a work of
travel, but the courts might here feel justified in taking the more
liberal view.

{Sidenote: Affidavit requirement}

To the manufacturing provision of the previous law has been added a new
affidavit requirement (sec. 16) as follows:

"That in the case of the book the copies so deposited shall be
accompanied by an affidavit, under the official seal of any officer
authorized to administer oaths within the United States, duly made by
the person claiming copyright or by his duly authorized agent or
representative residing in the United States, or by the printer who has
printed the book, setting forth that the copies deposited have been
printed from type set within the limits of the United States or from
plates made within the limits of the United States from type set
therein; or, if the text be produced by lithographic process, or
photo-engraving process, that such process was wholly performed within
the limits of the United States, and that the printing of the text and
binding of the said book have also been performed within the limits of
the United States. Such affidavit shall state also the place where and
the establishment or establishments in which such type was set or plates
were made or lithographic process, or photo-engraving process or
printing and binding were performed and the date of the completion of
the printing of the book or the date of publication."

{Sidenote: Avoidance of errors}

In preparing the affidavit, which is necessary for books only, the
applicant should be careful to note the following points, as to which
errors are commonly made. The affidavit should correspond exactly with
the application (as that with the title-page or other data in the work
itself). The affidavit cannot be made till _after_ publication and must
state the exact day of publication or the date of completion, either or
both, which last means not necessarily the completion of printing the
whole edition, but of the deposit copies. The affidavit must be taken
and signed by an individual, not by a corporation, company or firm as
such, and the affiant must state whether he is the claimant, agent of
the claimant, or printer, striking out the other designations. The name
of the printer and binder must be given in the affidavit with city and
state (but not street) address; but this means the printing and binding
establishment and not the individual type-setter or binder. If the book
is not bound but only issued in paper, the word "unbound" should be
written into the affidavit. It is necessary to give the _venue_, that
is, the county and state in which the affidavit is made, and to take the
oath before a notary or other official authorized to take such oath in
that locality (not merely a justice of the peace). The affiant's and
notary's names should be signed exactly as written into the body of the
affidavit, and the seal should correspond exactly with the name of the
official and the _venue_. The signature of the affiant and of the notary
and the seal are all necessary to validate the affidavit. The names and
other writing should be written plainly, and the affiant should make
sure to read the affidavit and compare it with the application and with
the book.

{Sidenote: Forfeiture by false affidavit}

In case of false affidavit, forfeiture of copyright is provided (sec.
17) as follows:

"That any person who, for the purpose of obtaining registration of a
claim to copyright, shall knowingly make a false affidavit as to his
having complied with the above conditions shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be punished by a fine of
not more than one thousand dollars, and all of his rights and privileges
under said copyright shall thereafter be forfeited."

{Sidenote: Exact compliance necessary}

The affidavit clause is exact and specific. It may be made either by
the printer or the publisher. This exacting and drastic addition to the
manufacturing clause met with strong opposition from the friends of
copyright, particularly authors and book publishers, as unnecessary and
unreasonable, but was successfully insisted upon by the representatives
of the typographical unions. The voiding of copyright because of a false
affidavit by a printer or publisher, which might even be mistakenly made
and of which the author would have no cognizance, was opposed as
especially unjust to authors and out of keeping with the rest of the
law. Under the statute as enacted, this provision must be exactly
complied with, and the courts would doubtless enforce it to the letter.

{Sidenote: Importation questions}

The manufacturing provision of 1891 and its extension in the code of
1909 have raised important and difficult questions as to the time at
which these provisions become effective in relation with copyrights
previously existing. It was claimed by Benziger Brothers, as proprietors
of a copyright American edition of the "Key of Heaven," that an edition
of sheets printed in America previous to the law of 1909 and sent abroad
for binding, could be re-imported notwithstanding the new provision
against binding, but the decision of the appraisers at New York against
this claim was upheld by the Secretary of the Treasury, under advice of
the Attorney-General, and the courts have not yet had occasion to pass
on the question. This ruling indicates that since July 1, 1909,
copyright could not be maintained on any book unless type-set, printed
and bound completely within the limits of the United States, and that
any copyrighted books, partly manufactured in the United States, but
bound and otherwise completed abroad since July 1, 1909, must be denied
importation. It has been decided, however, by the Attorney-General, that
the manufacturing requirement as to binding refers only to the original,
and that copyright books rebound abroad cannot be denied importation.
Also it has been held that a foreign translation of a copyright work,
for which translation American copyright is not claimed, cannot be
refused importation.

The provisions supplementing the manufacturing clause by prohibiting
importation are given in the chapter on importation.

{Sidenote: Foreign manufacturing provisions}

Holland is the only country in Europe which requires that the deposit
copies shall be printed within the country and thus makes manufacture a
condition of copyright--an inheritance probably from the times when the
printer-publishers of the Protestant Netherlands were the only ones
printing the books barred in Catholic countries by the _index
expurgatorius_, and when deposit was naturally required from them. The
law covered the Dutch West Indies, and the precedent was followed in
Siam; and in the Transvaal and Orange State the Dutch law continued
after they had become English colonies. Otherwise than in these
countries, only the British dominions of Canada and Newfoundland and the
Commonwealth of Australia have manufacturing provisions. Canada made
such provision as to domestic copyright in 1886 and again in the act of
May 2, 1889, which last provides that a literary, scientific, musical or
artistic work shall, before or simultaneously with publication or
production elsewhere, be registered in the office of the Minister of
Agriculture, and be printed or published or produced in Canada within
one month after publication or production elsewhere. Newfoundland in its
statute of 1892, following our own of 1891, provided similarly that the
condition for obtaining copyright shall be that the literary, scientific
or artistic work shall be printed and published or produced in this
colony. Australia, under the new code of 1905, confines domestic
copyright to books (inclusive of drama) "printed from type set up in
Australia, or plates made therefrom, or from plates or negatives made in
Australia in cases where type is not necessarily used," and in an
artistic work to those "made in Australia."

{Sidenote: English patent proviso}

Unfortunately, the precedent of our copyright act of 1891 has since been
followed in England in the patent and designs act of 1907, which
provides (sec. 27) that a patent may be revoked after four years "on the
ground that the patented article or process is manufactured or carried
on exclusively or mainly outside the United Kingdom." Such a provision
had been a feature of the patent laws of Germany, Canada and other
countries, but it is new in British law and has evoked strong protest
from American patentees, notwithstanding that it is parallel with our
manufacturing provision with respect to copyrights.



XI

DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT


{Sidenote: Dramatists' and composers' rights}

The dramatic author and the musical composer receive recompense for
their creative labor not so much from publication of their works in the
printed form of a book as through their performance or representation,
when protected as playright or performing right, as the artist receives
remuneration not only for the reproduction and sale of copies, but also
from the exhibition as well as sale of his original work. Dramatic and
musical copyright, in the wide sense, therefore, covers copyright in the
specific sense and playright, as to which latter common law rights
especially need statutory protection.

{Sidenote: American provisions}

In the protection of dramatic and musical compositions the new American
code specifically provides not only for copyright, but for playright or
right of performance. Under subject-matter of copyright (sec. 5) such
works are classified as "(d) Dramatic or dramatico-musical compositions;
(e) Musical compositions"; and the Copyright Office Rules and
Regulations further define these classes as follows:

{Sidenote: Copyright Office definitions}

"8. _(d) Dramatic and dramatico-musical compositions_, such as dramas,
comedies, operas, operettas and similar works.

"The designation 'dramatic composition' does not include the following:
Dances, ballets, or other choregraphic works; tableaux and moving
picture shows; stage settings or mechanical devices by which dramatic
effects are produced, or 'stage business'; animal shows, sleight-of-hand
performances, acrobatic or circus tricks of any kind; descriptions of
moving pictures or of settings for the production of moving pictures.
(These, however, when printed and published, are registrable as
'books.')

"9. _Dramatico-musical compositions_ include principally operas,
operettas, and musical comedies, or similar productions which are to be
acted as well as sung.

"Ordinary songs, even when intended to be sung from the stage in a
dramatic manner, or separately published songs from operas and
operettas, should be registered as musical compositions, not
dramatico-musical compositions.

"10. _(e) Musical compositions_, including other vocal and all
instrumental compositions, with or without words.

"But when the text is printed alone it should be registered as a 'book,'
not as a 'musical composition.'"

{Sidenote: Rights assured}

To dramatic and musical authors are given (sec. 1) in addition to the
general right, granted in subsection "(a) To print, reprint, publish,
copy and vend the copyrighted work," the specific exclusive rights:

"(b) ... to dramatize it if it be a non-dramatic work; to convert it
into a novel or other non-dramatic work if it be a drama; to arrange or
adapt it if it be a musical work;...

{Sidenote: Dramatic rights}

"(d) To perform or represent the copyrighted work publicly if it be a
drama or, if it be a dramatic work and not reproduced in copies for
sale, to vend any manuscript or any record whatsoever thereof; to make
or to procure the making of any transcription or record thereof by or
from which, in whole or in part, it may in any manner or by any method
be exhibited, performed, represented, produced, or reproduced; and to
exhibit, perform, represent, produce, or reproduce it in any manner or
by any method whatsoever;

{Sidenote: Musical rights}

"(e) To perform the copyrighted work publicly for profit if it be a
musical composition and for the purpose of public performance for
profit; and for the purposes set forth in subsection (a) hereof, to make
any arrangement or setting of it or of the melody of it in any system of
notation or any form of record in which the thought of an author may be
recorded and from which it may be read or reproduced";--to which
provision of subsection (e), in respect to copyright control of
mechanical records, are added provisos that such control shall not
extend to compositions published and copyrighted before July 1, 1909,
and works of foreigners whose state does not grant similar right to
American citizens, and shall be subject to compulsory license
arrangements, requiring that if the author permits any mechanical
reproduction, he shall license any manufacturer under conditions stated
in detail in the act, all of which exceptions and conditions are fully
stated in the chapter on mechanical music provisions.

{Sidenote: Excepted performance}

An exception to these exclusive rights is, however, made in the proviso
(sec. 28) "_Provided, however_: That nothing in this Act shall be so
construed as to prevent the performance of religious or secular works,
such as oratorios, cantatas, masses, or octavo choruses by public
schools, church choirs, or vocal societies, rented, borrowed, or
obtained from some public library, public school, church choir, school
choir, or vocal society, provided the performance is given for
charitable or educational purposes and not for profit."

This proviso is singularly defective in phraseology, as the phrase
"octavo choruses" has no musical significance and uses a music-trade
term to designate choruses usually but not necessarily published in
octavo form; and the duplication of the words "public school," etc., is
probably a verbal error in the bill which mistakenly became part of the
law. The proviso is doubtless intended and would fairly be construed to
permit gratuitous unauthorized performance of religious or secular works
such as oratorios, cantatas, masses, and choruses by public schools,
church choirs, school choirs or vocal societies, from copies rented,
borrowed, or obtained from some public library, provided the performance
is given for charitable or educational purposes and not for profit.
Curiously the letter of the proviso would seem to provide that the
beneficiary organization cannot perform from a purchased copy, but only
from copies rented, borrowed or "obtained from" some public source; but
this also is an evident error.

{Sidenote: Performance "for profit"}

It should be noted that the omission from subsection (d) as to drama and
the inclusion in subsection (e) as to music, of the words "for
profit,"--doubtless with the intent of assuring to the individual
purchaser of music the right to perform it privately,--have significance
here, and serve, it would seem, to give the dramatic author absolute
control even over gratuitous performances and to limit the control of
the musical author to performances which are not gratuitous, a negative
provision covering, and giving much wider latitude than, the proviso
(sec. 28) above cited. But as dramatico-musical compositions are
classified (sec. 5, d) with dramatic compositions, and an oratorio and
possibly a cantata might be considered as a dramatico-musical
composition, the proviso (sec. 28) may have a specific effect as to this
kind of dramatico-musical compositions. The law is unfortunately
defective and confusing by reason of this proviso and will be so
difficult of judicial construction as to suggest the omission, by
amendment, of this proviso. The use of the word "public" in both cases
implies that the author cannot control private representation and opens
other questions difficult of judicial interpretation.

{Sidenote: Works not reproduced}

It is provided (sec. 11): "That copyright may also be had of the works
of an author of which copies are not reproduced for sale, by the
deposit, with claim of copyright, of one complete copy of such work if
it be ... a dramatic or musical composition"; provided that the required
deposit of two copies shall be made, as in the case of books, on
publication thereafter by the multiplication and public sale or
distribution of copies.

{Sidenote: Copyright notice}

The notice of copyright must be printed (sec. 18) on each copy, as in
the case of a book in the form "Copyright" or the abbreviation "Copr.,"
"accompanied by the name of the copyright proprietor" and "the year in
which the copyright was secured by publication." In the case of a
published dramatic work the notice must be placed, as in the case of a
book, upon the title-page or the page immediately following, but in the
case of a published musical work the law provides that the notice "shall
be applied ... either upon its title-page or the first page of music,"
and this specification makes the copyright notice of doubtful validity
if applied in a musical work on the page following the title-page,
unless this is the first page of music.

{Sidenote: Dramatico-musical works protected from mechanical
reproduction}

The classification of dramatico-musical compositions under subsection
(d) as dramatic works and not under subsection (e) as musical
compositions, defines an opera and possibly an oratorio or cantata as a
dramatic rather than a musical composition. As the dramatic author is
given (sec. 1, d) the comprehensive rights over reproduction "in any
manner or by any method whatsoever" while the musical author is limited
(sec. 1, e) in respect to mechanical reproductions, it would seem to
follow that the author of an opera may retain absolute control over
mechanical reproduction, as the author of a non-musical drama retains
absolute control over phonographic or other reproduction of his drama.
This would seem to confine the requirements that the author of a musical
composition permitting mechanical reproduction should license any
manufacturer, to musical compositions which are not dramatic, _i. e._,
to instrumental compositions or to songs and other vocal music not
associated with drama. As an overture to an opera is an integral part of
the dramatico-musical composition, it would even seem that an overture
which is part of an opera, or possibly an orchestral introduction or
interlude in an oratorio or cantata, would not be subject to the
mandatory license provided as to musical compositions. But this question
has not yet come before the courts.

{Sidenote: Dramatic and musical works excepted from manufacturing
provisions}

Dramatic and musical works are not mentioned in the manufacturing and
affidavit provisions (secs. 15, 16, 17) which are specifically confined
to "the printed book or periodical specified in section 5, subsections
(a) and (b)," while dramatic and musical compositions are classified in
subsections (d) and (e). It might be alleged that dramatic or musical
compositions in book form or produced as books from type or by
lithographic or photo-engraving process should be classified as books
and subjected to the manufacturing provisions; but this is distinctly
not the letter of the law. This exception was specifically upheld for
music in the case of Littleton _v._ Ditson in 1894, by Judge Colt in the
U. S. Circuit Court in Massachusetts, where the defense that there was
no copyright in certain songs because the music sheets were not from
type set or plates made within the United States, was overruled; and for
drama in Hervieu _v._ Ogilvie in 1909, where in the U. S. Circuit Court
in New York, Judge Martin cited with approval Judge Colt's decision.
This ruling was also embodied in Treasury decision No. 21012 of April
17, 1899, permitting the importation of musical compositions copyrighted
in the United States and printed abroad.

{Sidenote: British colonial practice}

The Australian law, on the contrary, specifically includes under the
definition of "book," a "dramatic work" and a "musical work," and thus
subjects both to the manufacturing clause. Printing and publishing are
required in Canada ("within one month after publication or production
elsewhere") and in Newfoundland to obtain copyright under the local
acts; and as drama is not mentioned but included generically as a book
or literary composition, and music is specifically included, both
dramatic and musical compositions must be manufactured within each
country to obtain local, as distinguished from British or Imperial,
protection.

{Sidenote: Entry under proper class}

{Sidenote: Applications and certificates}

The author of a dramatic, dramatico-musical, or musical composition
should therefore be careful to make application in the United States
under class (d) or (e) and not as a book under class (b). The fact that
the law classifies under subsection (d) dramatic or dramatico-musical
compositions and under subsection (e) musical compositions, has caused
the Copyright Office to prepare separate application forms and
certificates for (D1) a dramatic composition, (D3) a dramatico-musical
composition and (E1) a musical composition, "published"; as also for
(D2) a dramatic composition (or a dramatico-musical composition) and
(E2) a musical composition, "not reproduced for sale." It would seem
advisable therefore that the author of an opera, oratorio or the like,
to obtain the fullest protection under the law, should enter such work
in class (d) as a dramatico-musical composition rather than in class (e)
as a musical composition, and thus safeguard himself against the
mechanical music proviso applied exclusively to class (e).

{Sidenote: Right of dramatization}

In regard to dramatization, the new American code is specific (sec. 1,
b) in giving to the author of an original work the exclusive right "to
dramatize it if it be a non-dramatic work" or "to convert it into a
novel or other non-dramatic work if it be a drama." The relations of a
maker of a dramatic version of a literary work or of a literary version
of a dramatic work, would follow the same rule as in the case of a
translator. An author has the exclusive right to dramatize or permit the
dramatization of his work, and the dramatization may be copyrighted in
the name of the original author or of the dramatizer, but the dramatizer
cannot prevent another dramatization of the same work unless by transfer
of exclusive right from the original author.

{Sidenote: Dramatization term}

The specific copyright on a published dramatization dates from the
publication of the dramatization, which may extend the protection of the
dramatization beyond the copyright term of the original work. But on the
expiration of the copyright in the original work rival dramatizations
can no longer be prevented. All this holds true as to the novelization
of a drama.

{Sidenote: Musical arrangements}

In respect to music, the language of the law (sec. 1, e) is thoroughly
comprehensive in covering the arrangement or setting of a musical
composition or of a melody in any notation or in any form whatever. This
gives to the musical author entire control over the use of any part of
his work, as for instance the transcription from an orchestral work for
piano use, the instrumentation of a vocal work or the use for a song of
any melody in an orchestral work. On the other hand, variations,
transcriptions and so forth of a copyrighted work, made under
authorization from the copyright proprietor, may be separately
copyrighted as to that extent original works.

{Sidenote: Copyright Office definitions}

The Copyright Office Rules and Regulations say specifically: "(10)
'Adaptations' and 'arrangements' may be registered as 'new works' under
the provisions of section 6. Mere transpositions into different keys are
not expressly provided for in the copyright act; but if published with
copyright notice and copies are deposited with application, registration
will be made."

{Sidenote: Transposition}

In Hein _v._ Harris in 1910, the U. S. Circuit Court awarded damages
where the chorus of a song proved on transposition into the key of the
copyright song to be practically a copy of the melody.

{Sidenote: Works in the public domain}

It is specifically provided (sec. 6) that "adaptations, arrangements,
dramatizations ... or other versions of works in the public domain, ...
shall be regarded as new works subject to copyright," and in the case of
such versions copyright inheres in the dramatizer, adaptor or maker of a
version, as in the case of a translator of a book, in the public domain.
Thus a dramatic or musical work in the public domain may be dramatized
or adapted freely and any individual dramatization or adaptation may be
copyrighted by the dramatizer or adaptor, but he cannot prevent other
dramatization or adaptation of the same work.

{Sidenote: Dramatization right protected by courts}

The American courts have fully upheld the control over dramatization
under the right "to dramatize" specifically given in the law of 1891 and
preserved under the new code. In 1895 in Harper _v._ Ranous, Judge
Lacombe, in the U. S. Circuit Court in New York, enjoined a play,
"Trilby," on the ground that the drama "presents characters, plot,
incidents, dramatic situations and dialogue appropriated from Du
Maurier's copyrighted novel," while denying protection against the mere
use of the title. In the same year and in respect to the same novel, in
Harper _v._ Ganthony, the Harpers, as owners of the copyright of
"Trilby," also obtained from Judge Lacombe an injunction against Miss
Ganthony, who had presented at the Eden Musée a series of monologues in
costume following the plot of the story, which the judge held to
constitute a dramatic version and therefore an infringement. A story,
"The transmogrification of Dan," purchased by the _Smart Set_ for $85,
copyrighted as part of that periodical and assigned back to the author,
was dramatized by Paul Armstrong and produced by the defendants under
the name of "The heir to the Hoorah," retaining the central incident of
the story, though with modification and extension of the characters,
situation and dialogue. In 1908 Judge Hazel, in Dam _v._ Kerke La Shelle
Co., in the U. S. Circuit Court in New York, awarded the full profits
from the dramatic representation as damages to the executor of Dam, the
author of the story; which decision was fully upheld in 1910 by the
Circuit Court of Appeals through Judge Noyes. Thus the new American code
specifically enacts into statute law previous decisions of the American
courts.

{Sidenote: English law and practice}

Under English law, on the contrary, the right of dramatization has not
been included under copyright; the mere copyrighting of a book could not
prevent its dramatization, but the copyrighting of a work in dramatized
form before its publication as a novel practically prevented other
dramatization of the literary work in so far as the one drama was a
reproduction of the features of the other. As stated by Colles and Hardy
in their recent work (1906) on "Playright and copyright in all
countries," "a novel is not a dramatic piece, ready and fit for
representation on the stage. Consequently, the author of a novel has the
copyright in his book, but he has no playright according to English
law." The general principles were best stated in 1874 by Chief Justice
Cockburn in Toole _v._ Young, where Grattan's drama "Glory" was declared
not to be an infringement either of Hollingshead's novel "Not above his
business," on which it was confessedly founded, nor of the dramatic
version made under the title of "Shop" by Hollingshead himself, but
never printed or performed and therefore unpublished: "Two persons may
dramatize the same novel, for that is common property. It is true that a
writer cannot produce and represent a drama, which he has borrowed from
a drama written previously by another person; he would then be
representing the production of the first dramatist.... I wish to guard
myself against being supposed to lay down that, if a writer, while
dramatizing a novel, takes the incidents, characters, and dialogue of a
previous drama founded upon that novel, and reproduces what is in
substance identical with the previous drama, there might not be an
infringement of the right of the earlier dramatist if the later drama be
represented on the stage."

{Sidenote: The new British code}

The new British measure remedies this defect by specifically including
the sole rights to convert a novel or other non-dramatic work, or an
artistic work, into a dramatic work, by way of performance in public or
otherwise, and to convert a dramatic work into a novel or other
non-dramatic work.

{Sidenote: Infringement cases}

A curious early case was that of Reade _v._ Conquest in 1862, in which
the son of Charles Reade had made and sold to the defendant, who
produced it at his theatre, a dramatic version of "It is never too late
to mend" in ignorance of the fact that his father had first written a
play called "Gold" and had then transformed that into the novel; in this
the defendant was enjoined because the version which he produced
infringed the earlier play. In Beere _v._ Ellis in 1889, Baron Pollock
enjoined a rival dramatic version of "As in a looking glass" on the
ground that while bits of dialogue, presumably copied into the
defendant's version, were scarcely substantial, yet a special situation
founded on a new incident not in the novel and certain stage business
connected with the death of the heroine constituted an infringement. In
1890, in Schlesinger _v._ Turner, the executors of Wilkie Collins
obtained an injunction against a rival dramatic version of "The new
Magdalen," the judge holding that although the defendant's version had
not been copied from the author's own play, it was substantially similar
and therefore an infringement. That an independent and different
dramatic version can, however, be made, was specifically held in the
case of Schlesinger _v._ Bedford in the same year, when Collins's
executors failed to obtain an injunction against the defendant's rival
dramatic version of "The woman in white," although the novelist himself
had previously dramatized his work, the judge holding that the two plays
were "essentially different."

{Sidenote: Use of substantial quotations}

But the use in a play of considerable portions of a copyrighted novel
would be an infringement. That a dramatization using substantial parts
of a novel infringes the novel, was definitely established in 1863 in
Tinsley _v._ Lacy, where the proprietor of Miss Braddon's "Lady Audley's
secret" and "Aurora Floyd" obtained an injunction against a bookseller
who sold dramatizations under the same titles of which a quarter or more
of the text was taken bodily from the novels. So in 1888 an injunction
was obtained from Judge Stirling, in Warne _v._ Seebohm, in the Court of
Chancery, against a dramatization of "Little Lord Fauntleroy" which
copied from the novel beyond the limits of fair use and was therefore
considered a "copy" from the work.

{Sidenote: Specific scenes or situations}

Where in dramatizing a novel, the dramatic author invents and introduces
new scenes, situations or other features, the copying of such added
features into another dramatic version of the novel, otherwise
independent, constitutes an infringement of the original play. In the
case of Nethersole _v._ Bell in 1903, with respect to rival English
dramatic versions of Daudet's "Sapho," it was held that while there
might lawfully be independent dramatizations of the novel, the
circumstances indicated that the Espinasse version of the defendant,
said to have been written in Australia, had been so modified consequent
to representation of Clyde Fitch's version, as to constitute an
infringement of the plaintiff's rights. In Tree _v._ Bowkett in 1896,
plaintiff obtained an injunction against the use by the defendant in a
rival dramatic version of "Trilby" because of two scenes introduced by
the plaintiff into his drama which were not in the novel or in the
American dramatization. On the other hand, in Chatterton _v._ Cave in
1876, where the plaintiff had dramatized Eugene Sue's "The wandering
Jew" and added two scenes not in the novel, an injunction was denied by
Lord Chief Justice Coleridge against an independent dramatization,
though it had included similar scenes, on the ground that these were not
sufficiently substantial and material in the play to constitute an
infringement. And this application of the principle of _de minimis non
curat lex_ was affirmed by the House of Lords in 1878.

{Sidenote: What is a dramatic composition}

{Sidenote: Judge Blatchford's opinion}

As to what is a dramatic composition or representation, no definition is
given in the American law, and the English laws of 1833 and 1842, quoted
beyond, are not explicit. Both English and American courts have
therefore been obliged to make or to extend definitions, but the
decisions have been somewhat confusing. The most explicit general
statement is that made by Judge Blatchford in discussing Daly _v._
Palmer in 1868: "A composition, in the sense in which that word is used
in the act of 1856, is a written or literary work invented or set in
order. A dramatic composition is such a work in which the narrative is
not related, but is represented by dialogue and action. When a dramatic
composition is represented in dialogue and action by persons who
represent it as real by performing or going through with the various
parts or characters assigned to them severally, the composition is
acted, performed, or represented; and if the representation is in
public, it is a public representation. To act in the sense of the
statute is to represent as real by countenance, voice, or gesture that
which is not real. A character in a play who goes through with a series
of events on the stage without speaking, if such be his part in the
play, is none the less an actor in it than one who, in addition to
motions and gestures, uses his voice. A pantomime is a species of
theatrical entertainment, in which the whole action is represented by
gesticulation without the use of words. A written work consisting wholly
of directions, set in order for conveying the ideas of the author on a
stage or public place by means of characters who represent the narrative
wholly by action, is as much a dramatic composition designed or suited
for public representation as if language or dialogue were used in it to
convey some of the ideas."

{Sidenote: Judicial definitions}

In a recent case of Barnes _v._ Miner in 1903, where an injunction was
asked against a vaudeville change artist who had combined songs in
costume with a cinematograph representation of scenes in the dressing
room during the changes, Judge Ray, in the U. S. Circuit Court in New
York, declined to grant relief, adding that as a mere spectacular
composition such "sketch" was not properly a dramatic composition. The
English law was construed in 1848 in Russell _v_. Smith, when a song
"The ship on fire," in which dramatic action was exhibited by the singer
alone without costume or scenery, while seated at the piano, was
construed to be a "dramatic piece"--the action being "not related but
represented." In 1872, in Clark _v._ Bishop, a music hall song "Come to
Peckham Rye" was similarly protected as a "dramatic piece." But in 1895,
in Fuller _v._ Blackpool Winter Gardens Co., it was held that the song
"Daisy Bell," though sung in character costume, was not a "dramatic
piece" because its representation did not require acting or dramatic
effect. Later decision construed the act of 1833 to cover only spoken
words, the English Court of Appeal holding in Scholz _v_. Amasis in
1909, through Lord Chief Justice Farwell, that only substantial copying
of written dialogue, and not of a plot or situation, constitutes
infringement, and in Tate _v._ Fullbrook in 1908, that the writer of the
dialogue is the sole author of the musical sketch though devised and
staged by another. But in two cases, one by Moore in 1903 and one by
Fraser in 1905, against George Edwardes, English juries gave heavy
damages where the scenarios for musical comedies submitted to that
theatrical manager had been made the basis for musical comedies by other
writers afterward produced at Daly's Theatre, London.

{Sidenote: Moving pictures may be infringements}

The opinion of Judge Blatchford was quoted and followed by the U. S.
Circuit Court of Appeals in New York, in 1909, in Harper _v._ Kalem Co.,
which said through Judge Ward: "The artist's idea of describing by
action the story the author has written in words is a dramatization. It
is not necessary that there should be both speech and action in dramatic
performances although dialogue and action usually characterize them." In
this case the defendants had caused persons to represent the action in
certain scenes of "Ben Hur" and photographed this representation on a
moving picture film, which they reproduced for sale to theatoriums,
where public exhibitions were given for profit. The court held under the
old law that "moving pictures would be a form of expression infringing
the author's exclusive right to dramatize his writings and publicly to
perform such dramatization." The contrary view was held in the English
case of Karno _v._ Pathé Frères in 1908, where also the Court of
Appeal held, in 1909, that not the manufacturer but the exhibitor of
such a film would be the responsible party if there were infringement.

{Sidenote: Literary merit not requisite}

The doctrine that copyright does not depend on literary merit, was
strengthened in a dramatic case in Henderson _v._ Tompkins in 1894, in
the U. S. Circuit Court in Massachusetts by Judge Putnam, who held that
a paraphrase of "I wonder if dreams come true," from "Ali Baba,"
constituted an infringement, though the offending piece had slight
literary merit.

{Sidenote: What is a dramatico-musical composition}

As to what is a musical composition, the term defines itself. But the
phrase "dramatico-musical compositions," as used in the American code,
bristles with perplexities, not altogether solved by the definitions of
the Copyright Office Rules, above cited. It means, of course, music and
drama in association, but in this combination the definition of the
dramatic side is peculiarly difficult. Whether a dance, ballet or other
choregraphic work, with or without music, is included, is a mooted
question. In 1892, in Fuller _v._ Bemis, where the plaintiff sought to
protect a skirt dance of which she had filed a description for copyright
as a dramatic composition, Judge Lacombe, in the U. S. Circuit Court in
New York, held that: "It is essential for a dramatic composition to tell
some story. The plot may be simple, it may be but the representation of
a single transaction; but it must repeat or mimic some action, speech,
emotion, passion, or character, real or imaginary. A series of graceful
movements, combined with an attractive arrangement of drapery, lights,
and shadows, telling no story, portraying no character, depicting no
emotion, is not a dramatic composition." This view is adopted in the
Copyright Office Rules and defines accepted American practice, but is
not consonant with English and international views.

{Sidenote: The new British code}

The new British measure is definitely comprehensive and specific in
including as a dramatic work "any piece for recitation, choregraphic
work or entertainment in dumb show the scenic arrangement or acting form
of which is fixed in writing or otherwise, and any cinematograph
production where the arrangement or acting form or the combination of
incidents represented give the work an original character."

{Sidenote: Protection of playright}

It is evident that the methods for securing copyright for published
dramatic and musical works are in general the same, with exceptions
noted in this chapter, as for literary works, that is, publication with
copyright notice and registration with deposit promptly after
publication of two copies of the best edition then published, with a fee
of one dollar. Copyright in the specific sense is, however, of less
importance to the dramatic or musical author, as has already been
pointed out, than playright or performing right, which is also covered
and protected specifically by the code of 1909, though in less accurate,
definite and satisfactory provisions, involving in some respects serious
questions. The right at common law or in equity to prevent the copying,
publication or use of an unpublished work and to obtain damages
therefor, is specifically confirmed (sec. 2), and this applies
especially to unregistered manuscripts.

{Sidenote: Protection of unpublished work}

The method of registration of an unpublished work to secure playright or
performing right, as previously stated, is absolutely simple, consisting
solely in the registration of a claim and the deposit of one copy of the
work in manuscript or other unpublished form, with a fee of one dollar.
The law is clear and satisfactory as to the punishment, after such
registration, of infringement of playright or performing right, but it
is not clear as to the date from which such protection starts, and
whether protection is for an indeterminate period up to publication
(practically in perpetuity if no publication be made), or for the
statutory term. This is because the relations of publication and first
performance are inferences only and specifically defined in the law. The
Copyright Office issues a certificate for twenty-eight years, but
without reference to initial date, which would be presumably the date of
the certificate. The Copyright Office will doubtless, under this
precedent, issue renewal certificate for the second term of twenty-eight
years. The trend, and in several instances the letter of the law, shows
publication to mean the multiplication or reproduction of printed or
other copies and their public offering, sale and distribution, and
indicate that performance, whether privately or publicly and for profit,
is not publication. The new Copyright Office Rules specifically hold
that: "Representation on the stage of a play is not a publication of it,
nor is the public performance of a musical composition publication."
Judicial decisions on this point both in England and this country are
confusing if not contradictory. In the absence of specific provision in
the law for renewal of term in unpublished works, the view that the
grant of the statute is for protection under the common law rather than
a statutory and limited grant of privilege, is defensible and may be
upheld by the courts, should a case arise. No case is likely to arise
for twenty-eight years from the time of first copyright, under the act,
of an unpublished work; but the dilemma will then present itself to the
author whether he should apply for a renewal term and thus accept the
limitations of the statute, or rely upon the original registration as a
protection in perpetuity up to the time of publication. Possibly before
that time this difficult point may be made clear by supplementary
legislation.

{Sidenote: Indeterminate protection}

The most serious argument against the view that unpublished works may be
protected indeterminately, is founded on the provision of the
Constitution authorizing Congress to grant protection for limited terms,
as to which the view may be upheld that Congress is not here making a
grant, but is offering statutory protection to the inherent right of an
author in an unpublished work.

In any event the author has clear rights for twenty-eight years from the
date of publication or the date of first performance, whichever the
earlier. In case of publication, it is altogether probable that the
playright or performing right will be construed by the courts to lapse
at the end of the copyright term and renewal thereof of the published
work, and in case a "book of the play" or libretto of an opera is
printed for sale within a theatre in connection with the performance,
that will undoubtedly constitute publication and such copies should be
copyrighted.

{Sidenote: Printing and performance}

The doctrine that performance is not publication was upheld by the N. Y.
Court of Appeals in Palmer _v._ DeWitt in 1872, in which the assignee of
the manuscript and playright of Robertson's drama "Play" was granted an
injunction against the printing of the drama, although it had been
publicly performed, but not printed, in London. The same doctrine was
applied in the Illinois Supreme Court in 1909 in Frohman _v._ Ferris.
But publication abroad, by the printing of a drama unless protected
under the international copyright provisions, has been held to forfeit
the common law playright transferred with an unpublished manuscript, by
the decision in Daly _v_. Walrath in 1899, by Judge Bartlett in the N.
Y. Supreme Court, when an injunction was refused against the performance
of Sudermann's "Die Ehre," translated as "Honor," because the author had
printed the play in Germany despite a contract with the American
assignee to refrain from publication. In the case of Wagner _v._ Conried
in 1903, in the U. S. Circuit Court in New York, Judge Lacombe declined
to enjoin a production of "Parsifal," holding that the publication of a
printed edition by Schotts in Germany had forfeited playright, since the
reservation by Wagner in his contract with Schotts of the acting rights
was not applicable in this country. The printing of a dramatic
manuscript solely for the use of the players is not publication, as was
held in French _v_. Kreling, in 1894, by Judge Hawley in the U. S.
Circuit Court in California, where Farnie's opera "Falka," of which the
musical score had been published, but the libretto printed only for the
singers, was protected as an unpublished manuscript.

{Sidenote: English confusion}

{Sidenote: Specific English provisions}

The English law as to dramatic and musical copyright and playright and
performing right, has been most confusing if not contradictory, and
authorities differ, as do MacGillivray and Scrutton, in its
interpretation. Whether public performance constitutes publication or
whether they are separable and separate events has been diversely
treated in the laws, by the judges and in legal text-books. The dramatic
copyright act of 1833, known as Bulwer-Lytton's act, a clumsy attempt to
clear up earlier uncertainty, provided that the author of "any tragedy,
comedy, play, opera, farce, or any other dramatic piece or
entertainment, composed, and not printed and published," shall have "the
sole liberty of representing in any part of the British Dominions"; "and
the author of any such production, printed and published," shall, "until
the end of twenty-eight years from ... such first publication" or for
life, have "the sole liberty of representing ... as aforesaid." The
general copyright act of 1842 specifically applied this previous act
also to "musical compositions" and enacted "that the sole liberty of
representing or performing ... any dramatic piece or musical
composition" shall "endure ... for the term in this act provided for ...
copyright in books," that is, for forty-two years or life and seven
years; and the provisions of the act as to copyright and registration
were extended to representing or performing, "save and except that the
first public representation or performance of any dramatic piece or
musical composition shall be deemed equivalent in the construction of
this act to the first publication of any book." The "copyright (musical
compositions) act" of 1882 added the requirement, that in the case of a
musical composition, to retain the performing right, notice of
reservation should be printed on the title-page of every published copy,
and the act further provided that the proprietor of the performing
right, if the owner of the copyright be another person, may require him
to print such notice of reservation, for neglect of which he shall
forfeit twenty pounds.

{Sidenote: Probable effect}

Thus common law rights, it would seem, in an unpublished and unperformed
dramatic or musical work were given, pending publication, statutory
protection, apparently in perpetuity, from the date of composition.
Publication of a dramatic or musical composition in printed form ensured
copyright protection as a book for forty-two years or life and seven
years; and performing right was protected for forty-two years from "the
first public representation or performance of any dramatic piece or
musical composition" or life and seven years, whichever the longer.

{Sidenote: Publication prior to performance}

It had been the view of many English authorities that publication in
printed form as a book before the first public performance forfeited
performing rights, which opinion was shared by the Royal Copyright
Commission as voiced in the report of 1878 in the digest of Sir James
Stephen, who said: "The exclusive right of representing or performing a
dramatic piece or musical composition cannot be gained if such dramatic
piece or musical composition has been printed and published as a book
before the first representation thereof." But in the later case of
Chappell _v._ Boosey in 1882, in respect to John Oxenford's play of "The
bellringer," which had been printed and published previous to
performance, it was held in the Court of Chancery that publication as a
book before performance does not take away performing rights. On musical
compositions, however, the performing right is forfeited on publication
in print unless notice of reservation is printed on the published
copies. There remain the difficult questions whether when publication
precedes performance the statutory protection of the performing right
extends beyond the forty-two years from publication and whether
copyright and playright should be separately registered. It has been the
practice of English dramatists to give a so-called "copyright
performance" at a minor theatre, in which actors walk and talk through
the drama and the public is invited to pay a shilling at the box
office--and sometimes given half a crown apiece for the purpose; which
performance, though probably not necessary to fulfill any legal
requirement, permits registration of first performance at Stationers'
Hall and gives useful public notice to possible infringers.

{Sidenote: The new British code}

This uncertain and confused situation will be remedied under the new
British measure by the inclusion under "copyright" of the right "to
perform ... to deliver, in public" and the making of the copyright term
the "life of the author and fifty years after his death," which together
afford the simplest and most complete protection of playright as
incident to copyright.

{Sidenote: British international protection}

The international copyright act of 1844 contained the provision "that
neither the author of any book, nor the author or composer of any
dramatic piece or musical composition ... which shall ... be first
published out of her Majesty's dominions, shall have any copyright
therein respectively, or any exclusive right to the public
representation or performance thereof, otherwise than such, if any, as
he may become entitled to under this act,"--a provision inserted
probably for advantage in negotiating reciprocal conventions with other
countries. This provision was applied in 1863, in the case of Boucicault
_v._ Delafield, to a British author whose play had been first printed
and published as well as performed in America. In Boucicault _v._
Chatterton in 1876, the Chancery Division held that the prior
performance of "The Shaughraun" in New York was publication and deprived
the author of playright in England,--which again seems incompatible with
the doctrine upheld in the later case of Chappell _v._ Boosey, above
cited. Great Britain is the only country in the International Copyright
Union which has declined to accept the declarative interpretation made
in Paris in 1896 of the Berne convention of 1886, declaring that
performance does not constitute publication. Thus if a dramatic or
musical work is first publicly performed outside the British dominions,
the performing right is extinguished therein, unless protected under the
international copyright acts, though first publication outside the
British dominions of a work first publicly performed within them, may
not extinguish the performing right.

{Sidenote: Statutory ambiguity}

The confusion of judicial interpretations, as to the relations between
performance and publication, in international as well as domestic
copyright, was invited by the unfortunate draftsmanship in the copyright
act of 1842, in which the clause making first performance "equivalent in
the construction of this act to the first publication of any book" may
be taken either in a comprehensive sense or merely as defining the
starting-point for performing right as well as for copyright in the
specific sense.

{Sidenote: What is public performance}

The question of what is public performance is of some importance,
especially in Great Britain, where playright is not infringed except by
representation in a place of dramatic entertainment and where it has
been held that any place in which a dramatic piece is publicly performed
is for the time a place of dramatic entertainment. A public performance
is probably one to which the public in general is admitted either by
sale of tickets or by invitation; and this would probably include a
performance given before a society to membership in which the public
might be admitted, although a performance limited to a certain class of
the public might not be construed as a public representation. Where "Our
boys" was performed at Guy's Hospital, London, by an amateur company,
for nurses and others connected with the hospital specially invited, it
was held in 1884, in Duck _v._ Bates, that though a performance may be
public where the public are present, although no money is taken, yet the
production in question was not a public representation. In this leading
case, important as a precedent for America as well as in England, the
decision was made by Justices Brett, M. R., and Bowen, L. J., Justice
Fry dissenting, and the Master of the Rolls, in an elaborate opinion,
discussed the relations of private and public performance, as a question
of fact: "In order to entitle the author to penalties there must be a
representation which will injure the author's right to money; such, for
instance, as a representation which, although it is not for profit,
would attract persons who are willing to pay money, and would induce
them not to go and see a performance licensed by the author.... The
representation must be other than domestic or private. There must be
present a sufficient part of the public who would go also to a
performance licensed by the author as a commercial transaction.... I
wish to say, by way of warning, that those who go beyond the facts of
the present case may incur the penalties of the statute."

{Sidenote: Manuscript rights}

Common law rights in an unpublished manuscript of an unperformed work,
cover both copyright and playright. In 1894, in Gilbert _v._ Star, while
the comic opera "His Excellency" was in manuscript and under rehearsal,
Justice Chitty in the Court of Chancery granted an injunction against a
newspaper report of the plot and incidents on the common law ground that
its communication to the newspaper involved a breach of contract, thus
confirming the right of an author to full control of his manuscript work
for copyright as well as playright, upheld in Prince Albert _v._ Strange
in 1849. But a dramatic author cannot enjoin a drama, however similar,
completed before the publication or performance of his own work, as was
decided in the case of Reichardt _v._ Sapte, in 1893, where the author
of "The picture dealer" was denied relief against the closely parallel
play "A lucky dog," which was proved to have been completed in 1890,
though not performed until after the writing and presentation of the
author's play in 1892.

{Sidenote: American cases}

The right of control of an unpublished dramatic manuscript under common
law was strengthened in Herne _v._ Liebler, in 1902, by the decision of
Judge Ingraham in the N. Y. Supreme Court, which upheld the right of the
plaintiff to prevent sub-license of a play beyond the terms of the
contract by a licensee, who had agreed to keep the manuscript
unpublished and use it only under specific limitations. In the case of
Maxwell _v._ Goodwin, in 1899, where the plaintiff's play of "Congress"
had been rejected by the defendant, who afterward produced a play
"Ambition," also founded on scenes in Washington, Judge Seaman in the U.
S. Circuit Court in Illinois overruled the defendant's contentions that
there was no playright under common law in an unpublished manuscript and
that there was no inherent property right in ideas or creations of the
imagination apart from the manuscript in which they are contained or the
language in which they are clothed; though an injunction was denied on
proof that the defendant had not read the plaintiff's manuscript and
that the actual author of "Ambition" had no knowledge of the plaintiff's
play.

{Sidenote: Unpublished orchestral score}

In 1883, in Thomas _v._ Lennon, where Gounod's "Redemption," of which
the orchestral score was unpublished, had been rewritten for orchestra
from a published non-copyright piano arrangement, Judge Lowell, in the
U. S. Circuit Court in Massachusetts, ruled against this as an
infringement of the unpublished work on common law grounds--but this
decision has not been considered good law.

{Sidenote: Dramatic work by employee}

Copyright in dramatic work can be obtained, as in the case of
encyclopædic and like works, by the employment for hire of a dramatic
author, as was fully established in the case of Mallory _v._ Mackaye in
1898, by Judge Wheeler in the U. S. Circuit Court in New York, where
Mackaye had contracted for a salary of $5000, that all inventions and
plays by him within the ten years of the contract should belong to
Mallory, and was restricted accordingly from the independent production
of "Hazel Kirke."

{Sidenote: Copyright term}

The duration of copyright in dramatic and musical compositions is the
same as for books, in the United States (twenty-eight years with renewal
for twenty-eight years more), in Great Britain (under the new code life
and fifty years), in Australia (forty-two years or life and seven years,
as hitherto in Great Britain), and in Canada and Newfoundland
(twenty-eight years with renewal for fourteen years more),--as also in
most other countries, the new term for those in the International
Copyright Union which have accepted the convention of Berlin, being life
and fifty years. But in the case of a "dramatico-musical" work, where
the libretto and the music are by different authors, the respective
terms may end at different dates, as was held in 1905, and upheld in
1909, by the German courts as to the opera "Carmen" under the
Franco-German convention limiting copyright to thirty years after death.
Bizet, author of the music, had died in 1875, but one of the three
librettists was still living, on which facts the court held that the
musical score, but not the libretto, was free from copyright. Under the
new British and Canadian measures, which include the unusual provision
that the copyright term in a work of joint authorship shall be
determined by the first instead of the last death, the result would be
to the contrary effect.

{Sidenote: Registration}

Registration in the United States, as also in Canada and Newfoundland,
through the deposit of copies, is entirely the same for a dramatic or
musical composition as for a book. Registration in England of a dramatic
or musical composition under the act of 1842 (sec. 20) was to be made at
Stationers' Hall, as in the case of a book, by recording in statutory
form the title, the time and place of first publication, or for
performing right, of first public performance, and the name and abode of
author and of proprietor. But the same law (sec. 24) provided that
protection of performing right in a dramatic piece should not be
dependent upon entry in the registry and, by including in the definition
of a dramatic piece (sec. 2) a "musical entertainment," evidently
included musical compositions in this exemption, and thus made
registration optional. This view was upheld in 1848 in Russell _v._
Smith, when the song "The ship on fire" was protected as a "dramatic
piece," though it had not been registered. The new British measure omits
all requirements for registration of any works. Registration of any
copyright, performing right or assignment is required in Australia as a
prerequisite for legal action.

{Sidenote: Assignment}

Assignment or grant of a dramatic or musical composition, as of a book,
may be made (sec. 42) by an instrument in writing, acknowledged, if in a
foreign country, (sec. 43) before a consular or diplomatic officer, and
must be recorded (sec. 44) in the Copyright Office within three months,
or if made in a foreign country, six months, in default of which it is
void as against any subsequent purchaser. Assignment in Great Britain
must be in writing, and previous to the new code with entry at
Stationers' Hall, in the case of performing right as well as of
copyright. It should be noted that playright does not pass with
copyright _ipso facto_, though the new code as adopted by the House of
Commons has no specific provision on this point. But it is most
desirable that in any transfer of copyright or playright the exact
nature of the right transferred should be defined in the writing. A
partial assignment, or license, of performing right as well as of
copyright may be made, and will be protected by the courts. The right to
grant a specific license, and to enforce its limitations, was upheld in
1892 in Duck _v._ Mayen, in an English court by Justice Day, who held
that where the defendant had obtained license at the price of one guinea
to play "Our boys" for charity at a music hall, but performed it
elsewhere, though for the same charity, the usual royalty of five
guineas must be paid. Assignment in Canada and Newfoundland must be in
writing in duplicate copies, of which one must be deposited in the
office of copyright.

{Sidenote: Parody}

The general principles as to infringement and fair use, treated fully in
another chapter, apply to dramatic and musical compositions, as already
illustrated above, but some special applications may here be noted. That
a parody or burlesque may not be an infringement, though including some
quotations from the work parodied, was decided in 1903, in Bloom _v._
Nixon,--where Fay Templeton had given a parody or imitation of another
actress's singing of "Sammy" in the "Wizard of Oz,"--in the U. S.
Circuit Court in Pennsylvania by Judge McPherson, who held that as this
was essentially an imitation of personality, it was not an infringement
of copyright: "Surely a parody would not infringe the copyright of the
work parodied merely because a few lines of the original might be
textually reproduced." The judge added: "No doubt the good faith of such
mimicry is an essential element; a mere attempt to evade the owners'
copyright ... would properly be prohibited" as "doing in a roundabout
way what could not be done directly."

{Sidenote: Infringement by single situation}

There may be infringement of dramatic copyright in the use of a single
scene or situation, as already set forth with respect to novels,
provided this is of dramatic character. In 1892, in Daly _v._ Webster,
the U. S. Circuit Court of Appeals, through Judge Lacombe, held that the
railroad rescue scene in Brady's "After dark" infringed the copyright of
Daly's "Under the gaslight," which contained the similar situation of
the rescue of a person on a railroad track before an approaching train.
Though there was little dialogue in this scene, the court held that
while mechanical appliances are not entitled to copyright, a series of
events dramatically represented are copyrightable. In the subsequent
suit for damages, Daly _v._ Brady, the U. S. Supreme Court in 1899,
through Justice Peckham, upheld this decision, and held also that such a
situation constituted an integral part of the copyrighted drama and
should therefore be protected against infringement. That there may be
infringement of a dramatic composition without the use of scenery or
costumes was incidentally decided in Russell _v._ Smith, where the song
"The ship on fire," sung dramatically without these accessories, was
protected as a dramatic piece.

{Sidenote: Protection of title}

While the title of a dramatic or musical composition, like that of a
book, cannot be copyrighted as such, the courts seem disposed to
emphasize the title as an integral part of a play, perhaps more than in
the case of a book because the advertising of another play of like name,
especially in the case of one of long run and wide popularity, may
mislead the public and involve unfair competition. This protection was
upheld as a matter of common law in Aronson _v._ Fleckenstein in 1886,
by Judge Blodgett in the U. S. Circuit Court in Illinois, when the use
of the title "Erminie" was held to be unlawful, though the operetta
originally designated by the title had not been copyrighted. But in
Glaser _v._ St. Elmo Co. in 1909, the U. S. Circuit Court denied relief
where the title of Miss Evans's novel, then out of copyright, was used
for a second and unauthorized dramatization. There may be danger to
copyright or playright when a work is published or performed under a
title differing from that under which it is copyrighted; but the change
of a descriptive sub-title has been held to be immaterial. In the case
of Daly's play "Under the gaslight," which in the copyright entry bore
the sub-title "A romantic panorama of the streets and homes of New
York," but in printed form the changed sub-title "A totally original
picturesque drama of life and love in these times," the defendants in
Daly _v._ Webster alleged that this change made the copyright invalid,
which contention was negatived by the U. S. Circuit Court of Appeals,
which held in 1892 that the sub-title was merely descriptive and not an
essential part of the title--a principle later applied by Judge Lacombe
in Patterson _v._ Ogilvie, in 1902.

{Sidenote: Names of characters}

In the case of Frohman _v._ Weber in 1903, in the N. Y. Supreme Court,
where the proprietor of the play entitled "Sherlock Holmes" sought to
enjoin another play "The sign of the four," in which the name Sherlock
Holmes designated the leading character, Judge Clarke held that this did
not constitute unfair competition and denied a preliminary injunction.

{Sidenote: Persons liable for infringement}

{Sidenote: Principal in control}

The question of the person liable for the infringement, especially of
playright, is one of some difficulty. In general, while any one
participating in a piratical performance, as an actor, is technically
guilty of infringement, it is usually the person or persons responsible
for and profiting by the performance who should be sued. The question of
responsibility is one of fact, and the early English decisions seem
confused and even contradictory. The person who has the initiative and
control of a performance, particularly if he is directly the employer of
the performers and has authority to discharge them, may be, _par
excellence_, the infringer even if he does not know that the performance
is piratical. In 1886, in Monaghan _v._ Taylor, the defendant was held
liable for infringement because a singer employed in his music hall sang
a copyright song, though the defendant did not choose or pass upon the
number. Thereafter in the "copyright (musical composition) act" of 1888,
it was provided that "the proprietor, tenant or occupier of any place of
dramatic entertainment" shall not be liable, "unless he shall willfully
cause or permit" a performance, "knowing it to be unauthorized." The
courts seem disposed to acquit a mere agent of responsibility. In 1893,
in French _v._ Day, Gregory, _et al._, it was held by Justice Kennedy as
to a performance of "The miner's wife" asserted to be an infringement of
"Lost in London," that the proprietor of the theatre, Day, "who merely
used Gregory," the manager, "as his mouthpiece," was the responsible
defendant. The new British code holds liable any person who for profit
permits a place of entertainment to be used for an infringing
performance unless he were not aware and had no reasonable grounds for
suspecting it to be an infringement.

{Sidenote: Protection against "fly by night" companies}

{Sidenote: State legislation}

In the prevention or punishment of unauthorized performances by
irresponsible private companies, the chief obstacle in the United States
was the difficulty of reaching the "fly by night" companies, as they
were called, as they flitted from state to state, and from one court
jurisdiction to another. To remedy this difficulty, an important
protection of the performing right in dramatic works was assured by the
act of January 6, 1897, obtained largely through the efforts of Bronson
Howard, as president of the American Dramatists Club. This act provided
penalty of $100 for the first and $50 for each subsequent unlawful
performance, and imprisonment for not exceeding one year, when such
unlawful performance was willful and for profit; and also that an
injunction issued in any one circuit might be enforced by any other
circuit in the United States. This was in consonance with successful
efforts to obtain the passage of state laws to protect dramatic and
musical works, aside from the federal copyright law, obtained by the
Dramatists Club between 1895 and 1905 in the states of New Hampshire,
New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey,
Massachusetts, Minnesota, California, Wisconsin, Connecticut, and
Michigan. These varied in form in the several states, though of the same
general purport. The New York statute, for instance, adds to the penal
code a new section as follows: "Sec. 729. Any person who causes to be
publicly performed or represented for profit any unpublished,
undedicated or copyrighted dramatic composition, or musical composition
known as an opera, without the consent of its owner or proprietor, or
who, knowing that such dramatic or musical composition is unpublished,
undedicated or copyrighted and without the consent of its owner, or
proprietor, permits, aids or takes part in such a performance or
representation shall be guilty of a misdemeanor." The texts in all the
states are given in full in Copyright Office Bulletin No. 3, 1906,
"Copyright enactments of the United States," pages 105-115.

{Sidenote: Remedies under present law}

The American code of 1909 enacts (sec. 28) that "any person who
willfully and for profit shall infringe any copyright ... or who shall
knowingly and willfully aid or abet such infringement, shall be deemed
guilty of a misdemeanor," punishable by "imprisonment for not exceeding
one year or by a fine of not less than one hundred dollars nor more than
one thousand dollars, or both, in the discretion of the court"; and
provides (sec. 25, fourth) damages "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"; and also provides (sec. 36) for
injunction operative throughout the United States.

{Sidenote: Musical protection in England}

{Sidenote: Acts of 1902-1906}

In England the protection of musical properties under the acts of
1833-42 and 1882-88, had become so difficult that English music
publishers threatened to cease printing new original works because of
the freedom with which they could be pirated. Under the provisions of
1833, as reënacted in 1842, every infringing performance of a musical
composition, as of a dramatic piece, involved liability to "an amount
not less than forty shillings or the full amount of the benefit or
advantage arising from such representation, or the injury or loss
sustained by the plaintiff therefrom, whichever may be the greater
damage," in addition to costs. The "copyright (musical compositions)
act" of 1882 (45 & 46 Victoria, c. 40) had required that the right of
public performance should be reserved by printed notice on each
published copy and provided for a penalty of twenty pounds where the
proprietor of the publishing copyright neglected, after requirement
from the owner of the performing right, to print such notice. The
"copyright (musical compositions) act" of 1888 (51 & 52 Victoria, c. 17)
provided that the penalty or damages for every unauthorized performance
of any musical composition shall, in the discretion of the court, be
"reasonable" and may be less than forty shillings for each such
performance, or nominal, and that the proprietor, tenant or occupier
should not be liable unless "willfully" causing or permitting such
unauthorized performance, "knowing it to be unauthorized,"--but the act
specifically excepted "any opera or stage play" from its provisions. The
protest of the musical composers and publishers led to the passage of
the "musical (summary proceedings copyright) act" of 1902, which
authorized a constable to seize without warrant pirated copies hawked or
otherwise offered for sale, on the written request and at the risk of
the copyright owner or by direction of the court, and provided for their
forfeiture and destruction or delivery to the owner on the decision of
the court. A Musical Copyright Committee, for the consideration of these
vexed questions, was appointed by the Home Office and made a report in
1904; and a further "musical copyright act" of 1906 continued the
provisions stated and provided also for the seizure of plates as well as
copies of pirated musical compositions and for the summary punishment of
the offender by fine not exceeding five pounds and, for a repeated
offense, by fine not exceeding ten pounds or imprisonment not exceeding
two months, possession being proof of fraudulent intent unless the
copies bore the name of a printer or publisher. Both these acts were
applicable only within the United Kingdom. These provisions, in addition
to those for injunction and adequate costs, have bettered the condition
of musical properties in England, and they remain unrepealed, except as
to requirement of registration, under the new British code as adopted by
the House of Commons.

{Sidenote: Playright in other countries}

In most countries playright in the case of dramatic or musical works is
specifically covered in the copyright statutes or protected in
connection with copyright, although in Austria, Russia, Denmark and
Norway, in the case of music, special notice of reservation is required,
while in Australia special reservation of the performing right must be
made on publication in print of drama or music.

{Sidenote: International provisions}

In general, performance is differentiated from publication, and while in
some countries, as above indicated, publication in printed form,
especially of a musical work, may waive the exclusive right of
performance, performance is generally held not to constitute
publication. This view is expressly set forth in the interpretation made
at Paris, 1896, of the Berne convention of 1886, whereby section 2 of
the interpretative declaration defines "published works" as "works
actually issued to the public." "Consequently, the representation of a
dramatic or dramatico-musical work, the performance of a musical work
... do not constitute publication." The Berlin convention of 1908
repeats the same language in article 4, prefacing it with the definition
that "by published works ('_oeuvres publiées_') must be understood,
according to the present convention, works which have been issued
('_oeuvres éditées_')"--the English text here given being the official
translation of the U. S. Copyright Office.

{Sidenote: Foreign protection of arrangements}

In most foreign countries which include musical compositions under
subjects of copyright either as covered under "literary and artistic
works" or by specific mention, the general principles as to arrangements
and adaptations hold in such countries. Several countries, as Belgium,
specify however "the exclusive right of making arrangements on motives
of the original composition," Brazil, Luxemburg, Mexico, Nicaragua and
Tunis following this precedent in nearly identical language. Germany
specifically protects the "sole right of making extracts from musical
works and arranging for orchestra or in parts." Spain specifies among
its prohibitions "the total or partial publication of melodies, with or
without accompaniment, transposed or arranged for other instruments or
with different words." Hungary specifies that "every arrangement of a
musical work, published without the consent of the author, which cannot
be considered as a composition in itself," is an infringement. Where,
however, the author of a work permits or licenses an adaptation or
arrangement, or an original adaptation or arrangement is made from a
work in the public domain, that is properly a separate subject of
copyright, as is specified in the statutes of Colombia, to the effect
that "variations, etc., on a theme or air which is public property,
constitutes property. Transpositions are similar to translations of
literary subjects."

{Sidenote: International definitions}

Dramatic and musical works were specifically included under the
protection of the International Copyright Convention of Berne, 1886, by
the definition in article IV of "literary and artistic works" as
including "dramatic or dramatico-musical works; musical compositions
with or without words." In the Berlin convention, 1908, the same general
term was defined in article 2 as including "dramatic or
dramatico-musical works; choregraphic works and pantomimes, the stage
directions ('_mise en scène_') of which are fixed in writing or
otherwise; musical compositions with or without words." "Adaptations,
arrangements of music, etc., are specially included," in the phraseology
of article X of the convention of 1886, "amongst the illicit
reproductions to which the present convention applies, when they are
only the reproduction of a particular work, in the same form, or in
another form, with non-essential alterations, or abridgments, so made as
not to confer the character of a new original work"; and practically the
same language is repeated in article 12 of the convention of 1908. On
the other hand, "adaptations, arrangements of music," etc., are
protected as original works without prejudice to the rights of the
author of the original work, in article 2 of the convention of 1908.

The German law of 1901 permits, however, extract from or other use of
musical compositions in adaptations or arrangement under specified
circumstances, as for family, social or other gratuitous performance,
under the limitations of the law, which exception seems to be permitted
also under the law of 1910.

{Sidenote: National formalities}

Throughout the countries of the International Copyright Union, first
publication in any of these countries and compliance with its
formalities entitle the author to playright as well as copyright in all
the other countries within the Union, with some exceptions to be noted.
Thus in Switzerland the conditions of performance must be given at the
head of the printed play; and the law stipulates that the author may not
require as royalty more than two per cent of the gross profits, and a
performance at which the admission fee is reckoned to cover only cost of
production or a performance for charitable purposes, is not considered
an infringement of playright. In Italy a play performed, but not printed
and published, must be submitted in manuscript for inspection within
three months of first performance, together with a declaration reserving
the playright; a printed book or play should be deposited with
accompanying notice of reservation within three months, or the
proprietor cannot obtain damages until such deposit, and failure to
deposit within ten years abandons copyright protection. Italian
proprietors of music sometimes refrain from printing and publishing
music, with the intent of maintaining copyright and playright
indefinitely.

{Sidenote: Specific reservations or conditions}

In Luxemburg and Sweden, reservation of playright must be stated on
printed copies, as is also the case as to music in these countries and
in the other countries elsewhere cited. In Sweden, the term for
playright is less than for copyright in the printed work, being for life
and thirty years only. In Sweden and Norway, the author protecting his
rights by first publication in these countries, must be a citizen of one
of the countries within the International Copyright Union or must
acquire rights through a publisher therein; though in the other
countries of the Union, this question of nationality is immaterial. In
Norway and Denmark, there must be reservation of right of recitation,
but in Norway this lapses in any event at the end of three years,
provided the recitation does not take the shape of a dramatic
performance. In Holland and the Dutch Indies, reservation of playright
must be given, and printing within the country has hitherto been
required to protect a published work. In Hungary, the author of a play
must give his name on the title-page or in the announcement of the play,
and protection is extended to foreigners who have been for two years
rate-payers and residents in Hungary, as well as those whose countries
have reciprocal relations. In Finland, the author's name and reservation
of playright must be given on the printed copy, and protection is
extended to foreigners on condition of residence and publication in
Finland.

Most of the smaller European countries and many South American
countries, including playright under copyright, base protection on
reciprocal protection of their citizens in other countries, while
protection of performing rights in Brazil requires notice on printed
plays of the reservation of royalty for performance. In many oriental
countries, as Egypt, China, etc., protection is afforded to some extent
in the consular courts.

{Sidenote: Pan American Union}

In the Pan American Union, the Buenos Aires convention of 1910
specifically includes dramatic and musical works as literary works,
without special provisions.



XII

MECHANICAL MUSIC PROVISIONS


{Sidenote: "Canned music" contest}

As the international copyright provision with the manufacturing clause
was the central feature of the copyright campaign culminating in the law
of 1891, so the provision for the control of mechanical music with the
compulsory license clause was the central feature of the contest
culminating in the act of 1909. This came to be known as the "canned
music" fight, and arguments pro and con consumed the greater part of the
hearings before the Committees on Patents. The solution finally reached
was in the provisos added to the musical subsection (e) of section 1 of
the bill, which in full is as follows:

{Sidenote: Mechanical music provisos}

{Sidenote: Compulsory license}

"(e) To perform the copyrighted work publicly for profit if it be a
musical composition and for the purpose of public performance for
profit; and for the purposes set forth in subsection (a) hereof, to make
any arrangement or setting of it or of the melody of it in any system of
notation or any form of record in which the thought of an author may be
recorded and from which it may be read or reproduced: _Provided_, That
the provisions of this Act, so far as they secure copyright controlling
the parts of instruments serving to reproduce mechanically the musical
work, shall include only compositions published and copyrighted after
this Act goes into effect, and shall not include the works of a foreign
author or composer unless the foreign state or nation of which such
author or composer is a citizen or subject grants, either by treaty,
convention, agreement, or law, to citizens of the United States similar
rights: _And_ _provided further, and as a condition of extending the
copyright control to such mechanical reproductions_, That whenever the
owner of a musical copyright has used or permitted or knowingly
acquiesced in the use of the copyrighted work upon the parts of
instruments serving to reproduce mechanically the musical work, any
other person may make similar use of the copyrighted work upon the
payment to the copyright proprietor of a royalty of two cents on each
such part manufactured, to be paid by the manufacturer thereof; and the
copyright proprietor may require, and if so the manufacturer shall
furnish, a report under oath on the twentieth day of each month on the
number of parts of instruments manufactured during the previous month
serving to reproduce mechanically said musical work, and royalties shall
be due on the parts manufactured during any month upon the twentieth of
the next succeeding month. The payment of the royalty provided for by
this section shall free the articles or devices for which such royalty
has been paid from further contribution to the copyright except in case
of public performance for profit: _And provided further_, That it shall
be the duty of the copyright owner, if he uses the musical composition
himself for the manufacture of parts of instruments serving to reproduce
mechanically the musical work, or licenses others to do so, to file
notice thereof, accompanied by a recording fee, in the copyright office,
and any failure to file such notice shall be a complete defense to any
suit, action, or proceeding for any infringement of such copyright.

{Sidenote: Damages}

"In case of the failure of such manufacturer to pay to the copyright
proprietor within thirty days after demand in writing the full sum of
royalties due at said rate at the date of such demand the court may
award taxable costs to the plaintiff and a reasonable counsel fee, and
the court may, in its discretion, enter judgment therein for any sum in
addition over the amount found to be due as royalty in accordance with
the terms of this Act, not exceeding three times such amount.

{Sidenote: Public performance}

"The reproduction or rendition of a musical composition by or upon
coin-operated machines shall not be deemed a public performance for
profit unless a fee is charged for admission to the place where such
reproduction or rendition occurs."

This provision, though somewhat involved in form, tells its own story,
and there has thus far been no occasion for judicial construction.

{Sidenote: The compromise result}

In the series of discussions before the Committees, the friends of
copyright argued for the exclusive and unrestricted right of the musical
composer to control absolutely the mechanical reproductions of his work,
while the representatives of "canned music" argued at first that
mechanical reproduction should be permitted without reference to
copyright, and later that there should be entire liberty to make
reproductions of a musical work on the sole condition of a specified
payment to the copyright proprietor. The provision as actually adopted
was a compromise upholding the negative right of the author to prevent
mechanical reproduction, but requiring him, in the event of a grant of
authority to any one manufacturer to reproduce his work mechanically, to
extend that privilege to any other manufacturer on payment of the
specified royalty. This scheme is practically modeled on what was known
as the Pearsall-Smith royalty plan, which, as proposed for books, was
stoutly fought by the proponents of the copyright act of 1891,
throughout that memorable copyright campaign.

{Sidenote: Judicial construction}

In the case of the White-Smith Music Pub. Co. _v._ Apollo Co., in which
the Æolian Co. was supposed to be the real complainant, the
representatives of the musical author were, in 1906, denied protection
against the mechanical music rolls made by the defendant, by the Circuit
Court of Appeals, where the judges considered themselves "constrained"
by the necessity of strict construction to decide that "a perforated
roll is not a copy in fact of complainant's staff notation," while
saying "that the rights sought to be protected belong to the same class
as those covered by the specific provisions of the copyright statutes."
It was presumed by many during the copyright campaign that the Supreme
Court would make a broad construction of the statute, but that court
held, February 24, 1908, in an opinion written by Justice Day, that the
considerations adduced "properly address themselves to the legislative
and not to the judicial branch of the Government" and that "as the act
of Congress now stands, we believe it does not include these records as
copies or publications of the copyright music involved in these cases."
Justice Holmes, while not dissenting, added a memorandum to the effect
that "the result is to give to copyright less scope than its rational
significance and the ground on which it is granted seems to me to
demand.... On principle, anything that mechanically reproduces that
collocation of sounds ought to be held a copy, or if the statute is too
narrow, ought to be made so by a further act, except so far as some
extraneous consideration of policy may oppose." While the judges thus
felt "constrained" to deny relief, their strong language in defense of
copyright control doubtless had its effect upon the legislative
authorities in the framing and the passage of the new code.

This decision was confirmatory of an earlier decision, in Stern _v._
Rosey in 1901, of Judge Shepard in the Court of Appeals in the District
of Columbia, that the mechanical reproduction of two copyrighted songs
could not be prevented under the existing law.

{Sidenote: Punishment of infringement}

Specific and elaborate provision is made for the punishment of
infringers under the mechanical music proviso (sec. 1, e) by sec. 25, e:

{Sidenote: Notice to proprietor of intention to use}

"Whenever the owner of a musical copyright has used or permitted the use
of the copyrighted work upon the parts of musical instruments serving to
reproduce mechanically the musical work, then in case of infringement of
such copyright by the unauthorized manufacture, use, or sale of
interchangeable parts, such as disks, rolls, bands, or cylinders for use
in mechanical music-producing machines adapted to reproduce the
copyrighted music, no criminal action shall be brought, but in a civil
action an injunction may be granted upon such terms as the court may
impose, and the plaintiff shall be entitled to recover in lieu of
profits and damages a royalty as provided in section one, subsection
(e), of this Act: _Provided also_, That whenever any person, in the
absence of a license agreement, intends to use a copyrighted musical
composition upon the parts of instruments serving to reproduce
mechanically the musical work, relying upon the compulsory license
provision of this Act, he shall serve notice of such intention, by
registered mail, upon the copyright proprietor at his last address
disclosed by the records of the copyright office, sending to the
copyright office a duplicate of such notice; and in case of his failure
so to do the court may, in its discretion, in addition to sums
hereinabove mentioned, award the complainant a further sum, not to
exceed three times the amount provided by section one, subsection (e),
by way of damages, and not as a penalty, and also a temporary injunction
until the full award is paid."

{Sidenote: Copyright Office form and fees}

The Copyright Office provides a special form (U) on a blue card for
registration of "notice of use on mechanical instruments," in which the
copyright owner of a musical composition gives notice that he "has used
or has licensed the use of said composition for the manufacture of parts
of instruments serving to reproduce mechanically such musical work." The
recording fee for such notice, as fixed by the statute (sec. 61), is
twenty-five cents for the first fifty words and twenty-five cents
additional for each additional hundred words.

For recording and certifying the license referred to (sec. 1, e) the
statute provides (sec. 61) for a fee of one dollar for not over three
hundred words, two dollars if not over one thousand words and one dollar
for each additional one thousand words or fraction thereof over three
hundred words.

{Sidenote: The constitutional question}

The actual fixing of a specified price, as that of two cents or a
halfpenny on each reproduction, is a feature quite new in law, American
or English, and involves a serious constitutional question. Congress has
granted to the Interstate Commerce Commission, and state legislatures to
specified authorities, as public service commissions, power to regulate
prices; and the U. S. Supreme Court, in 1909, confirming the N. Y. Court
of Appeals in the Consolidated Gas Co. cases, upheld the application of
the sovereign power of the state to limit the price of gas to 80 cents
per 1000 cubic feet, as sold by a corporation enjoying a public
franchise. In this compulsory license provision of the copyright code,
Congress has gone further in two directions: it has fixed a royalty
price, not by definition or limitation of a "reasonable" price, but
absolutely, and it has applied this provision not to a corporation
enjoying franchise privileges, but to the individual owner of property
created by his own labor.

{Sidenote: English law}

The English laws had not mentioned mechanical reproduction up to the
musical copyright act of 1906, which in section 3 expressly provided
that "'pirated copies' and 'plates' shall not, for the purposes of this
Act, be deemed to include perforated music rolls used for playing
mechanical instruments, or records used for the reproduction of sound
waves, or the matrices or other appliances by which such rolls or
records respectively are made." The test case meanwhile on this question
was that of Boosey v. Whight, which was finally decided in the Court of
Appeal in 1900, with respect to the use of copyrighted songs on the
perforated rolls of the Æolian. Justice Sterling in the lower court had
decided that the perforations were not an infringement of the copyright
but that the marginal directions for playing might be such; Justice
Lindley, M. R., held with him that the perforated roll was not a "copy"
of the sheet music, but overruled him on the second point, holding that
the directions, though copied from the printed page, were neither music
nor a literary composition.

{Sidenote: The new British code}

The new British measure as prepared in 1910 included as incident to
copyright the sole right "in the case of a literary, dramatic or musical
work, to make any record, perforated roll, cinematograph film, or other
contrivance by means of which the work may be mechanically performed or
delivered," thus in the simplest fashion completely covering the control
of mechanical reproduction in conformity with the convention of Berlin.
But in the Parliament of 1911 the bill emerged from committee stage with
an elaborate proviso, based on the American precedent, excepting from
the definition of infringement contrivances for the mechanical
reproduction of sounds on (1) proof that the copyright owner has
previously acquiesced in mechanical reproduction, (2) prescribed notice
of intention, and (3) payment of royalty of 2-1/2 or 5 per cent with a
minimum of a halfpenny for each record, or in the case of different
works on the same record, to each copyright proprietor.

{Sidenote: The Berne situation, 1886}

When the international representatives met at Berne in 1886, the
mechanical reproduction of music was confined chiefly if not wholly to
Swiss music-boxes and orchestrions and to hand-organs, of comparatively
little commercial importance; and, possibly with some thought of the
recognition of the hospitality of Switzerland, little emphasis was
placed on the protection of musical composers against mechanical
reproduction of their works. In fact, the final protocol of the Berne
Convention of 1886 contained, as clause 3, the following paragraph: "It
is understood that the manufacture and sale of instruments for the
mechanical reproduction of musical airs which are copyright, shall not
be considered as constituting an infringement of musical copyright."

{Sidenote: Lack of action at Paris, 1896}

Despite strong representations at the congresses of the International
Association for the protection of literary property, held at London in
1890, Neufchâtel in 1891, and Milan in 1892, and a vigorous endeavor in
connection with the Paris convention of 1896 to replace this clause, it
was not modified until the convention of Berlin in 1908, in preparation
for which a strong resolution was passed at the congress of the
International Association at Vevey in 1901.

{Sidenote: The Berlin provision, 1908}

With the increasing development of the phonograph and of the mechanical
player, mechanical reproductions became so important a matter to musical
composers and publishers, that much of the discussion in respect to the
amendatory convention of Berlin of 1908 was upon this subject. In the
amended convention, the subject was fully covered by article 13:

"Authors of musical works have the exclusive right to authorize: (1) the
adaptation of these works to instruments serving to reproduce them
mechanically; (2) the public performance of the same works by means of
these instruments.

"The limitations and conditions relative to the application of this
article shall be determined by the domestic legislation of each country
in its own case; but all limitations and conditions of this nature shall
have an effect strictly limited to the country which shall have adopted
them.

"The provisions of paragraph 1 have no retroactive effect, and therefore
are not applicable in a country of the Union to works which, in that
country, shall have been lawfully adapted to mechanical instruments
before the going into force of the present Convention.

"The adaptations made by virtue of paragraphs 2 and 3 of this article
and imported without the authorization of the parties interested into a
country where they are not lawful, may be seized there."

{Sidenote: German precedents}

In Germany, under the general copyright law of 1870, the higher courts
gave to musical composers control over mechanical reproductions from
which, as the industry grew, the authors or publishers obtained some
little return. But succeeding the adoption of the permissive clause in
the Berne convention of 1886, it was proposed in the new copyright law
to free mechanical reproductions from the control of the composer. A
protest was at once made by musical authors and publishers, which
resulted in a modification of the form proposed by the government and
the addition of a clause giving control where the reproduction involved
personal interpretation. In this form the "unfortunate section 22"
became part of the law of 1901 relating to copyright in literary and
musical works. Section 22 was in the following language:

"Reproduction is permitted when a musical composition is, after
publication, transferred to such discs, plates, cylinders, bands and
similar parts of instruments for the mechanical rendering of pieces of
music. This provision is applicable also to interchangeable parts,
provided that they are not applied to instruments by which the work can,
as regards strength and duration of tone and tempo, be rendered in a
manner resembling a personal performance."

{Sidenote: Law of 1910}

This had the extraordinary and contradictory effect of giving the author
control over the finer reproductions of his works but denying to him any
control over the cruder reproductions, as on hand-organs, orchestrions,
etc. The opposition which developed against this impossible situation
was largely influential in bringing about the modification at Berlin in
1908 of the Berne clause. The law of May 22, 1910, amended the previous
general laws in conformity with the Berlin convention, especially by
extending protection to the mechanical reproduction of music and
cinematograph reproduction of artistic works. Section 22 of the law of
1901 was specifically replaced by an elaborate section, modeled on the
American compulsory license provision and requiring a composer who
permitted mechanical reproduction to grant similar rights on equal terms
to any other manufacturers domiciled in Germany, with provisions for
reciprocity and for the treatment of non-German composers through the
tribunals of Leipzig. This law became effective coördinately with the
Berlin convention on September 9, 1910, and in connection with it an
ordinance promulgated by the Emperor July 12, 1910, defined the time
during which mechanical reproductions already made of copyrighted works
should still be permitted. The use of extracts from musical as from
other works, as perhaps in _potpourris_, seems however still to be
permitted as a result of the law of 1901.

{Sidenote: Germany and the United States}

As a result of the reciprocal provisions of the new German law, the
President of the United States on December 8, 1910, proclaimed
reciprocal relations between Germany and the United States with
reference to mechanical reproductions of music. In the opinion of May 6,
1911, approved by the Attorney-General, a Presidential proclamation is
required to determine "the existence of reciprocal conditions" as to the
mechanical music provision (sec. 1, e) as in respect to sec. 8; but as
the proclamation of December 8 did not recite that reciprocal conditions
existed between September 9 and December 8, 1910, it is held that "it
would not afford evidence sufficient to sustain an action for
infringement between said dates."

{Sidenote: French precedents}

In France the general copyright act of 1793, as considered to cover
mechanical music, was interpreted or modified by the act of 1866, which
enacted that "the manufacture and sale of instruments serving to
reproduce mechanically musical airs which are still in the private
domain, does not constitute musical infringement." In the suit of Enoch
_v. Société des phonographes et gramophones_, the Civil Court of the
Seine had decided in 1903 that phonographic instruments were excepted
from the protection of the law of 1793 by the "general immunities"
concerning the mechanical musical instruments in the act of 1866. But in
1905 the Court of Appeals of Paris reversed this decision, holding that
the law of 1866 applied solely to musical airs, that is, those involving
no words, on the ground that the law of 1793 was enunciatory of the
rights of authors, applying to all modes of publication and
distribution, and that the word "publication" should be understood
broadly "as jurisprudence has applied it to numerous modes of
publication discovered since the law of July 19 and 24, 1793, and the
Code of 1810, and as nothing prevents its extension, in consequence of
scientific progress"; and it therefore concluded that literary works
either by themselves or associated with music were practically under the
law of 1793 and not exempted by the law of 1866. A more recent case, in
the Court of Commerce of the Seine in 1905, resulted, however, in the
dismissal of a suit for infringement. France accepted the Berlin
convention, June 28, 1910; but its provision in article 13, that "the
limitations and conditions" as to mechanical music protection "shall be
determined by the domestic legislation of each country in its own case,"
makes uncertain whether protection becomes effective in the absence of
specific legislation.

{Sidenote: Belgian precedents}

In Belgium in 1904, in the suit of Massenet and Puccini _v. Compagnie
Générale des phonographes, et al._, it was held by the court of first
instance of Brussels that the introduction for sale of discs and
cylinders reproducing the musical compositions of the plaintiffs was
illegal and liable for damages and punishable as an infringement. This
decision was, however, overruled by the Court of Appeals of Brussels in
1905. Belgium accepted the Berlin convention, May 23, 1910, has since
protected mechanical reproduction, and was proclaimed as in reciprocal
relations with the United States, June 14, 1911.

{Sidenote: Italian precedents}

In Italy the copyright law was considered in relation to mechanical
instruments by several court decisions of which the latest and most
important seems to be in the case of the _Società Italiana d. Autori v._
Gramophone Co. of London, in which, in 1906, the Royal Court of Milan
held that reproductions of music by gramophone constituted infringement.
This decision held that article three of the Berne convention of 1886
could not derogate from or modify the domestic private law of 1882, and
as the Italian law specifically covers publication and reproduction "by
any method," it includes gramophone discs. "Publication means a process
by which the intellectual concept of the artist is revealed, and brought
to the knowledge of others." "What the legislature wanted has been this:
that the author be the exclusive owner of the external form in which the
creation of the mind has been fixed, and, so to speak, materialized; and
that the right be reserved to him to get from his studies and his
exertions all the economic benefits which he could derive therefrom."

{Sidenote: Other countries}

In the laws of Switzerland of 1883, and Monaco and Tunis of 1889, the
fabrication and sale of mechanical instruments or devices for
reproducing musical airs were excepted from the definition of piracy.
But all these countries have ratified the Berlin convention "without
reservation." Luxemburg and Norway have applied the Berlin provision and
were proclaimed as in reciprocal relation with the United States on June
14, 1911. Russia has followed American precedent in the new law of 1911,
but has no reciprocal relations with the United States.

{Sidenote: Argument for inclusion}

As the opposition to the control by musical composers of mechanical
reproductions of their works is still strong in the United States and in
several countries, notwithstanding recent conventions and legislation,
and is based largely upon restrictive definitions of the words
"writings" and "copies" or their equivalent in other languages, it may
be well to include here the argument made by the writer as
Vice-president of the American (Authors) Copyright League, at the
Congressional hearings on the new American code, of which the essential
portions are as follows:

"The American Copyright League stands, as it has stood for a quarter of
a century, simply and solely for the protection of authors' rights to
the fullest extent, and it asserts that a musical composer is as fully
entitled as is the author of any other creative work to the exclusive
and full benefits of his compositions, in whatever manner reproduced.
The opponents of the bill base their objections largely on a restrictive
definition of the word 'writings,' and criticise the bill because this
word 'writings' is interpreted throughout the bill by the word 'works,'
although this accurately reflects the understanding of Congress and the
interpretation of the courts. They would, in fact, confine copyright
protection specifically, it may be said, to e-y-e-deas, that is, visible
records, and exclude as not visible or legible by the eye, copies of
musical compositions mechanically made and interpreted.

{Sidenote: Inscribed writings}

{Sidenote: Direct sound-writing}

"The earliest _writing_ which remains to us is in the Assyrian
wedge-shaped inscriptions, made by pressing the end of a squared stick
into a soft clay cylinder; the phonograph point inscribes its record in
exactly the same manner upon the 'wax' or composition of the cylinder or
disc, for the mechanism only revolves the roll, and the point is
actuated by the sound vibrations. The words 'phonograph,' 'graphophone'
and 'gramophone' literally mean 'sound-writing,' for the Greek form
_graph-_, the Latin form _scrib-_, and the Saxon form _write_, equally
parts of our language, denote exactly the same meaning. It is even
probable that a future development of phonograph impressions (the third
dimension being translated into breadth of stroke as can be mechanically
done) will give ultimately a visual phonograph alphabet even more
natural and logical than Professor Bell's remarkable system of 'visible
speech,' which, of course, like all alphabets, can be read only when the
reader has mastered the significance of the symbols. Mr. Edison has
himself made some experiments in this direction, though the confusion
from the overtones, which give _quality_ of speech, has so far prevented
result. A large share of literary productivity to-day is by
voice-dictation recorded mechanically by a stenographer on the
typewriter or directly on the phonograph disc, and I may instance from
personal experience a further step. As one of the committee for the
Edison birthday dinner, commemorating the twenty-fifth anniversary of
his invention of the incandescent lamp, I was asked to supply some
original verse, and it occurred to me to put this in shape by help of
Mr. Edison's inventions, without direct or indirect hand- or
typewriting. Accordingly I completed the verses mentally without use of
paper and voiced them into an Edison phonograph, verifying this through
the telephone, and the lines were set in type by the printer from the
sound-record, and thus printed on the _menu_ for the dinner. Thus my
formulated ideas were recorded through the nerves and other mechanism of
the vocal organs, instead of through the nerves and other mechanism of
the hand, directly by the phonograph point on the phonograph cylinder;
and it seems a common-sense inference that if I had caused copies of the
phonograph cylinder, though not legible in the ordinary sense, to be
published instead of the secondary copies in print, I should be as much
entitled to copyright protection in the one case as in the other. The
'telegraphone' directly records on a steel tape the sounds of the human
voice as sent through the telephone, and by an absolutely invisible
re-arrangement of the magnetized particles of steel, makes a writing in
which there is no possibility of visual legibility.

{Sidenote: Music transmissal}

"Moreover, invention is now developing a series of reproducing
mechanisms such as Dr. Cahill's 'telharmonicon' or 'dynamophone,' in
which musical compositions will be translated to the ear without the
interposition even of a cylinder or disc sound-record; and it seems a
common-sense inference that the musical composer should have as full
rights in this as in other forms of copying or reproducing his thought.
Buda-Pesth is said to have not only a telephone 'newspaper,' but a
system of reading novels and other works of literature to telephone
subscribers, and if this should reach such proportions as substantially
to reduce the sale of the printed copies of a new novel from which the
author would receive benefit, it would also seem a common-sense
inference that the same or an equivalent royalty should be paid him.

{Sidenote: Music notation}

"In music writing or notation there are two and only two essentials:
relative vertical position, showing pitch, and relative horizontal
position, showing duration of notes. The earliest form of our present
music writing is the system of the 'large,' 'long,' 'breve' and
'semi-breve' notes, in which the pitch was shown by the vertical
relations of the notes, and the length of the note by the length of the
black mark, the 'large' mark being twice the length of the 'long' mark.
This corresponds closely to the perforated music roll of to-day, which
could be read by a practiced eye with and probably without staff lines,
to the extent that if every other form of reproduction were destroyed,
the melody and harmony of a musical work could be reproduced into the
ordinary notation of music writing. I speak from personal knowledge of
these music rolls, having had a mechanical instrument for some years.
The different kinds of rolls differ in the relative spacing and in
distance from the edge of the roll, which gives the standard, but a
foreshortened photograph of any, bringing them to the same scale, would
pattern closely the early form of music writing above cited. The London
postal telegraph system dispatches newspaper material from St. Martin's
le Grand throughout the kingdom from continuous perforated ribbons made
somewhat in the same way, visible and legible only to an expert, and
reproductions by the medium of this device would certainly not vitiate
copyright.

{Sidenote: The law prior to 1909}

"It may be observed that the existing law gives to the author or
proprietor of a musical composition the sole liberty not only of
printing, but of publishing, copying, vending, performing, or
representing a musical composition; that the statute does not restrict
'copying' either to a copy of 'staff notation' or from or in any
particular form, but prohibits in general any copy of a musical
composition; that there is no suggestion in the statute that the copy
must be one to be read, _e. g._, a copy of a sculpture; that any
sound-record is in the wide sense as truly a copy of a musical
composition as a printed sheet, which is not a copy, in fact, of the
author's manuscript writing; and that as the roll has for its sole
purpose the performing by the aid of a mechanism useless without it, of
a musical composition, just as a printed sheet of music has the sole
purpose of the performing by the aid of the voice, the piano, or the
orchestra, of a musical composition, the maker and vendor of the roll is
in exactly the same position as the maker or vendor of a printed sheet
of music.

{Sidenote: Manuscript and copies}

"But even if phonograph and perforated records should not be considered,
as is sculpture, to be 'writings,' the arguments of the opponents of
this bill do not fit the case. The Constitution explicitly provides that
authors shall have _exclusive rights_ to their writings. This cannot
mean exclusive rights to their written manuscripts, for these are
protected by common law and no constitutional provision was necessary.
It meant and means evidently that authors shall have exclusive rights to
the benefits of their writings, the usufruct of the property they have
created, and that means practically a monopoly control over all copies
or reproductions from such writings, whether the copies are in
handwriting, printing, or any other form. A musical score is definitely
a writing, for it is even more than a literary manuscript, originally in
the personal handwriting of the composer himself, without the
intervention of a stenographer or a typewriting machine. Therefore, if
the narrowest meaning of the word 'writings' should be interpreted into
the Constitution such as would exclude sculptures and other works which
are admittedly proper and legal subjects of copyright, it would still
specifically include musical and dramatic as well as literary
manuscripts. There is no specification in the Constitution confining the
exclusive rights over writings to copies in handwriting or print or any
other stated process of reproduction; in fact, the Constitution does not
use the word 'copyright' or in any way limit by specification the
comprehensiveness of the exclusive rights Congress is thus authorized to
secure. Indeed, Congress in the copyright laws has interpreted the
Constitution to cover the several artistic or reproductive processes
from time to time developed or invented; thus in the law of 1865 the
provisions of the copyright laws were extended to include 'photographs,'
which did not exist at the time of the adoption of the Constitution--which
word specifically means 'light-writings' as phonograph records
specifically mean 'sound-writings.'

{Sidenote: Protection of the inventor}

{Sidenote: The counter argument}

"The position taken by the American Copyright League is that an author
is literally entitled to the exclusive right, that is, the exclusive
_benefit_, in his writings, in whatever form the writings, that is, his
recorded thoughts, can be reproduced for sale or gain. If Mark Twain
writes a book or Bronson Howard a play or Sousa or Victor Herbert a
musical composition or Millet makes a painting or French a statue, each
is equally entitled to whatever benefit inures from his creative genius.
Mr. Sousa has stated clearly that although Caruso has been paid
$3000--and the fact widely advertised--for singing into a phonograph
record, and his own band (not under his leadership) has also been paid
for playing his compositions and those of others into the phonograph
horn, he has never received as a musical composer one cent for such use
of his creations, though from twenty to a hundred of his compositions
are to be found on the catalogues of the several manufacturers of
mechanical instruments. Mr. J. Howlett Davis, who properly appeared as
an inventor in defense of his own inventions in mechanical instruments,
which he mistakenly believes would be rendered useless if the copyright
protection were extended to sound-records, really asked that Congress
should protect the thing which he had invented, and compel users to pay
for it, but should permit him to use the thought which the musical
composer had invented and expressed, without paying for it. His argument
analyzed presents an even stronger argument for the proposed copyright
bill than for the protection of patented inventions. When Mr. Sousa buys
a patented cornet he has paid for the use of it, but Mr. Sousa makes no
claim either to make another cornet like it or to play copyrighted
musical compositions for profit without payment or permission. A piano,
a pianola, a music roll or new form of mechanism, is patentable; a
musical composition as played on a piano by hand or by mechanism,
whether reproduced on a printed sheet or a mechanical roll, is
copyrightable; but each should have like protection. I speak from
specific knowledge as one who has taken out patents as well as
copyrights and as the active head for some years of the Edison
Illuminating Company of New York and a participant in successfully
defending the Edison lamp patents. Mr. Edison, both as an inventor and
as a manufacturer of his own inventions, has profited much more than a
million dollars from his patents, and would naturally be expected to be
foremost in upholding the right of authors to payment for their brains."

{Sidenote: Complete protection}

The acceptance by most countries within the International Copyright
Union of the Berlin convention, without reservation on this question of
mechanical music, sets an example of complete protection of the musical
composer which it is hoped may be ultimately adopted by the United
States as well as by other countries.



XIII

ARTISTIC COPYRIGHT


{Sidenote: Threefold value in art works}

The artist-author, by the labor of his brain and hand, produces three
classes of property right or a threefold value: he receives recompense
from the sale of the original work made by his hand, or from the
exhibition of it, or from the reproduction and sale of copies. The new
American code is perhaps in advance of legislation in any other country
in the protection of the artist, for it assures to him separate values
in the right to sell his work and the right to reproduce and sell
copies, neither one of which rights is necessarily transferred with the
other; it enables him to copyright his original work before the
reproduction of copies, though it does not make absolutely clear whether
the exhibition without restriction of an uncopyrighted work results in
dedication; and it protects his right to control and profit from
reproductions, with the simplest possible copyright notice, not
including date, though as to lithographic and photo-engraving
reproductions it requires manufacture in this country. The literary,
dramatic or musical author produces no value in the original work
itself, except as his fame may ultimately make his manuscript valuable
as an autograph, and in this respect the artist-author has an advantage
of practical importance in the general provision separating the
copyright from the right in the material object. On the other hand,
show-right or right of exhibition is not as specifically treated or as
clearly defined and protected as is playright or right of performance in
the case of drama or music.

{Sidenote: American provisions}

The copyright of works of the fine arts and cognate works is
specifically provided for in the code of 1909 by including as
subject-matter of copyright (sec. 5) the following divisions: "(f) Maps;
(g) Works of art; models or designs for works of art; (h) Reproductions
of a work of art; (i) Drawings or plastic works of a scientific or
technical character; (j) Photographs; (k) Prints and pictorial
illustrations." It is not intended to include under subsection (k)
labels or prints of advertising or commercial character which may be
registered as trade-marks under the Trade-Mark law in the Patent Office.
The proprietor of a work of art is given in addition to the general
rights (sec. 1, a) the specific rights (sec. 1, b) "to complete,
execute, and finish it if it be a model or design for a work of art."

{Sidenote: Copyright Office classification definitions}

The new Copyright Office Rules and Regulations, promulgated 1910, define
these classifications in the following language:

"11. _(f) Maps._--This term includes all cartographical works, such as
terrestrial maps, plats, marine charts, star maps, but not diagrams,
astrological charts, landscapes, or drawings of imaginary regions which
do not have a real existence.

"12. _(g) Works of art._--This term includes all works belonging fairly
to the so-called fine arts. (Paintings, drawings, and sculpture.)

"Productions of the industrial arts utilitarian in purpose and character
are not subject to copyright registration, even if artistically made or
ornamented.

"No copyright exists in toys, games, dolls, advertising novelties,
instruments or tools of any kind, glassware, embroideries, garments,
laces, woven fabrics, or any similar articles.

"13. _(h) Reproductions of works of art._--This term refers to such
reproductions (engravings, woodcuts, etchings, casts, etc.) as contain
in themselves an artistic element distinct from that of the original
work of art which has been reproduced.

"14. _(i) Drawings or plastic works of a scientific or technical
character._--This term includes diagrams or models illustrating
scientific or technical works, architects' plans, designs for
engineering work, etc.

"15. _(j) Photographs._--This term covers all positive prints from
photographic negatives, including those from moving picture films (the
entire series being counted as a single photograph), but not
photogravures, half tones, and other photo-engravings.

"16. _(k) Prints and pictorial illustrations._--This term comprises all
printed pictures not included in the various other classes enumerated
above.

"Articles of utilitarian purpose do not become capable of copyright
registration because they consist in part of pictures which in
themselves are copyrightable, e. g., puzzles, games, rebuses, badges,
buttons, buckles, pins, novelties of every description, or similar
articles.

"Postal cards cannot be copyrighted as such. The pictures thereon may be
registered as 'prints or pictorial illustrations' or as 'photographs.'
Text matter on a postal card may be of such a character that it may be
registered as a 'book.'

"Mere ornamental scrolls, combinations of lines and colors, decorative
borders, and similar designs, or ornamental letters or forms of type are
not included in the designation 'prints and pictorial illustrations.'
Trademarks cannot be copyrighted nor registered in the Copyright
Office."

{Sidenote: The question of exhibition}

The new law does not specifically make clear the relation between the
exhibition of works of art and publication, or define whether or not
exhibition may constitute dedication to the public and thus prevent the
protection of the copyright thereafter. But in making copyright a
sequent to publication (sec. 9) and providing (sec. 2) "that nothing in
this Act shall be construed to annul or limit the right of the author or
proprietor of an unpublished work, at common law or in equity, to
prevent the copying, publication, or use of such unpublished work," it
makes it at least probable that the author of an artistic or cognate
work who simply exhibits, does not surrender the right to copyright. The
trend of the courts in recent decisions has been, as in the Werkmeister
case, cited below, to protect exhibited works, at least where any
reservation of rights could be construed into the circumstances of the
exhibition; but it is still uncertain whether the exhibition of a work
of art at a public museum where there is no regulation against copying
or reservation by the artist, might not constitute a dedication and thus
prevent later copyright.

{Sidenote: Protection of unpublished work}

In providing however (sec. 11) specifically "that copyright may also be
had of the works of an author of which copies are not reproduced for
sale, by the deposit, with claim of copyright ... of a photographic
print if the work be a photograph; or of a photograph or other
identifying reproduction thereof if it be a work of art or a plastic
work or drawing," it gives to the artist or the author of a cognate work
an easy means of protecting his production beyond question; and he is
not wise who neglects the simple precaution provided in the law.

{Sidenote: Copyright notice}

It is not made absolutely clear in the new law whether the copyright
notice must be attached to the original of a work of art; but again the
provision for protection is so simple that it is wise to take advantage
of the method of the law, by placing the copyright notice on the
original. The copyright notice may be in the form (sec. 18)
"'Copyright' or the abbreviation 'Copr.' accompanied by the name of the
copyright proprietor," the year of publication not being required in the
case of an artistic work. It is further provided that "in the case of
copies of works specified in subsections (f) to (k), inclusive, of
section five of this Act, the notice may consist of the letter C
inclosed within a circle, thus: ©, accompanied by the initials,
monogram, mark, or symbol of the copyright proprietor: _Provided_, That
on some accessible portion of such copies or of the margin, back,
permanent base, or pedestal, or of the substance on which such copies
shall be mounted, his name shall appear."

If the copyright notice is attached to the original, it is not made
clear whether it should be on the face of the work and visible to the
casual spectator; but again the wise artist will take an easy
precaution.

{Sidenote: Deposit}

It is further required (sec. 12) that "if the work is not reproduced in
copies for sale, there shall be deposited the copy, print, photograph,
or other identifying reproduction" required as above stated,
"accompanied in each case by a claim of copyright."

The new Copyright Office Rules and Regulations schedule (17) among
unpublished works that may be registered "(_c_) photographic prints;
(_d_) works of art (paintings, drawings, and sculpture), and (_e_)
plastic works," and states specifically as to the deposit in such cases:

"19. (2) In the case of photographs, deposit one copy of a positive
print of the work. (Photo-engravings or photogravures are not
photographs within the meaning of this provision.)

"20. (3) In the case of works of art, models or designs for works of
art, or drawings or plastic works of a scientific or technical
character, deposit a photographic reproduction."

As deposit in the case of an unpublished work takes the place of
publication and deposit in the case of works reproduced for sale, there
can be no claim for statutory protection of an unpublished work of art
without the deposit of the identifying copy, and the general provision
(sec. 13) for fine and for voiding of copyright in the case of
non-deposit, has, of course, no bearing on unpublished works. Any action
or proceeding in respect to an unpublished work not registered by
deposit must therefore be under common law and not under statutory
provision.

{Sidenote: Summary of requirements}

To sum up, the author of a work of art, who is exhibiting his painting
or statue or other work and not multiplying copies for sale, will assure
himself of full protection if before such exhibition he places on the
original work, in some visible but not obtrusive fashion, the letter C
inclosed in a circle with his name or mark, and deposits a photograph of
such work with the Librarian of Congress or in the mails addressed to
him, accompanied by a claim of copyright,--for which an application form
(J2, "photograph not reproduced for sale") is furnished on request, by
the Copyright Office from Washington,--with inclosure of one dollar.

As soon as the artist multiplies copies for sale, or permits
reproduction of his work, as in a newspaper report of an exhibition, for
instance, he must then take the precaution of depositing two copies of
such reproduction as provided in general by the act, and it is further
provided (sec. 18) "that on some accessible portion of such copies or of
the margin, back, permanent base, or pedestal, or of the substance on
which such copies shall be mounted, his name shall appear." In case two
copies are not so deposited, it is probable that a fine and forfeiture
of copyright would ultimately ensue, as indicated in section 13.

{Sidenote: Material and immaterial properties distinct}

It is specifically provided (sec. 41) that copyright is distinct from
the property in the material object, which accomplishes for the artist
the important result that when he sells his painting he does not
transfer the copyright, but retains that for himself unless he
specifically contracts with the buyer to include in the sale the
copyright or the right to copyright. This adopts into the law the
decision of the courts that copyright does not pass with a painting
unless distinctly included in the transfer. The provision (sec. 41) is
specific that the copyright "is distinct from the property in the
material object copyrighted, and the sale or conveyance, by gift or
otherwise, of the material object shall not of itself constitute a
transfer of the copyright, nor shall the assignment of the copyright
constitute a transfer of the title to the material object." Thus the
author of a work of art has two separate properties, the painting,
statue or other work in itself, on the one hand, and the copyright or
the right to copyright on the other, neither of which is transferred by
the transfer of the other unless both are specifically included in the
transfer.

{Sidenote: Manufacturing clause covers lithographs and photo-engravings}

{Sidenote: Foreign subjects excepted}

The copyright in certain classes of reproductions of works of art is
dependent however on manufacture in this country, as in the case of
books. This provision no longer includes photographs as in the preceding
law, but is confined specifically (sec. 15) to "text produced by
lithographic process, or photo-engraving process," "illustrations within
a book consisting of printed text and illustrations produced by
lithographic process, or photo-engraving process, and also to separate
lithographs or photo-engravings, except where in either case the
subjects represented are located in a foreign country and illustrate a
scientific work or reproduce a work of art." It is further provided
that "in the case of the book ... if the text be produced by
lithographic process, or photo-engraving process ... the copies so
deposited shall be accompanied by an affidavit ... that such process was
wholly performed within the limits of the United States." This
affidavit, therefore, is not required in the case of separate
lithographs or photo-engravings. The manufacturing provisions chiefly
concern the publishers of books, but they imply that artists cannot send
works abroad to have reproductions made. But by the opinion of January
9, 1911, approved by the Attorney-General, a design, drawing, or
painting made and located abroad intended as "the first step" for
lithographic reproduction, may be registered, if a "work of art"--which
question of fact is to be determined by the Register of Copyrights; and
such lithographic reproductions of it may be imported.

{Sidenote: German post cards}

It was held by the Attorney-General January 27, 1910, that lithographic
reproductions of original paintings in the form of illustrated post
cards made in Germany, are subject to registration, provided the
original paintings may properly be classified as works of art; and thus
importation of such post cards would be permissible.

{Sidenote: Artistic merit unimportant}

While there must be originality in a work of art, especially under
English law, this means little more than a prohibition of actual
copying, and as in the case of literary and dramatic works, artistic
merit is of little importance.

{Sidenote: Application forms}

{Sidenote: Certificates}

The Copyright Office furnishes without charge application forms,
lettered as indicated, for the following classes of art works: (F)
published map; (G) work of art (painting, drawing, or sculpture); or
model or design for a work of art; (H) reproduction of a work of art;
(I) drawing or plastic work of a scientific or technical character; (J1)
photograph published for sale, (J2) photograph not reproduced for sale;
(K) print or pictorial illustration. Thus the applicant should send for
application blank (G), if for an original work of art, (H), if for a
reproduction, or the proper blank in the other specified cases. But it
should be noted that it is both unnecessary and undesirable to apply
separately under different blanks as (G) and (H), since the single
copyright on the original work covers reproductions. Certificates are
returned by the Copyright Office on receipt of the application form and
of the statutory fee of one dollar, covering the same specified
subjects.

{Sidenote: Term in unpublished work}

When an original work of art is copyrighted, but is not published by
reproduction of copies for sale or distribution, it is uncertain under
the law, as in the case of dramatic and musical compositions, from what
date the copyright protection runs and whether the sole right of
reproducing copies for sale terminates at the end of a statutory term
beginning with the registration of the original work or with its
publication by the reproduction of copies for sale. The Copyright Office
issues a certificate of the registration of the original work as
covering a period of twenty-eight years and will doubtless base a
renewal on the termination of this term; and only a court decision will
determine whether the copyright of the original unpublished work exists
in perpetuity until publication or whether the right to reproduce copies
for sale lapses with the termination of twenty-eight or fifty-six years
from the registration of the original work.

{Sidenote: Date not required}

{Sidenote: Re-copyright objectionable}

The omission of the requirement of date in the copyright notice in the
case of a work of art is significant and important, although it has the
disadvantage that knowledge of the expiration of the term of copyright
can be had only by specific inquiry from the Copyright Office. It has
been the mistaken practice of more than one artist, under the old law,
to enter copyright on his original sketch or on his original work under
date of its beginning, again on the finished original under date of its
completion, and possibly again on reproductions under the date of the
first publication of copies; and when also the artist changed the name
of his work under these progressions, confusion became worse confounded.
From this superfluous zeal and mistaken carefulness, serious results
have come, as in Caliga _v. Inter-Ocean_ Newspaper Co., decided in 1909
by the U. S. Supreme Court through Justice Day, wherein an artist failed
to protect himself against an infringing reproduction, because he
brought suit under a second copyright which he had entered on finishing
his picture, instead of under the original and lawful copyright, under
which he had originally entered his work. The fact that by this second
copyrighting he laid claim to a longer term than the law allowed, made
the second copyright void and a suit under it of no avail. Under the new
law the author of a work of art is not only given specifically the
exclusive right "to complete, execute, and finish it if it be a model or
design for a work of art" as in the previous law, so that an artistic
work is protected by one copyright from design to completion and
reproduction; but he may also protect his original work during its
progress or exhibition before publication and thus safeguard his future
right to control and benefit from the multiplication of copies.

{Sidenote: Exhibition right transfer}

In case of the sale of the original work of art, the right to exhibit,
of course, passes with the original, although the right to copyright and
reproduce copies is expressly reserved to the artist. In view of the
uncertainty whether the unrestricted public exhibition of a work of art
constitutes dedication and prevents copyright thereof, the carelessness
of the purchaser of the original might raise question as to the validity
of later copyright of reproductions by the artist. It is therefore
unwise for an artist to sell the original of a work of art without
affixing to it the required copyright notice and depositing one copy of
an identifying photograph or print.

{Sidenote: Early English decision}

The leading case under English law as to exhibition is that of Turner
_v._ Robinson in the Irish Court of Chancery in 1860, previous to the
passage of the act of 1862 which first provided statutory copyright for
paintings, and interpretative therefore of common law. Turner's "Death
of Chatterton" had been reproduced in a magazine and exhibited at the
Royal Academy and in Manchester, and was thereafter exhibited for the
purpose of obtaining subscriptions for an engraving, in Dublin, where a
photographer copied it and published a stereoscopic reproduction. The
Master of the Rolls held that the painting had never been published
because the exhibitions were on condition that no copies should be made,
and the engraving in the magazine was only a rough representation and
not a publication of the picture. The Court of Appeal also held against
the defendant, but because of his breach of contract, and declined to
decide whether there had been publication in London or Manchester. The
Lord Chancellor, however, expressed the opinion that exhibition at the
Academy, though conditioned, was publication, though a private view in a
studio rather than a picture gallery would not be. The Court of Appeal
did not pass on the further opinion of the Master of the Rolls that the
publication of a print was not publication of the picture. These
confusing opinions left the question in very misty shape and the most
important interpretation of English practice has come from an American
court.

{Sidenote: The Werckmeister leading case}

The latest and leading case as to exhibition is that of Werckmeister
_v._ American Lithograph Co., American Tobacco Co., _et al._, which was
decided by the U. S. Supreme Court in 1907, in an opinion written by
Justice Day. The English artist Sadler had sold, in 1894, to
Werckmeister of the Berlin Photographic Co. the copyright in his picture
"Chorus," which he exhibited at the Royal Academy Exhibition of 1894,
and the design had been reproduced by the American Lithograph Co. for
use on an American Tobacco Co. label, though the photograph had been
given protection by copyright. In reply to the claim of the infringers
that such exhibition constituted dedication to the public, the Supreme
Court's decision quoted from Slater on "The law relating to copyright
and trade-marks."

{Sidenote: U. S. Supreme Court opinion}

"It is a fundamental rule that to constitute publication there must be
such a dissemination of the work of art itself among the public as to
justify the belief that it took place with the intention of rendering
such work common property," the court adding, "and that author instances
as one of the occasions that does not amount to a general publication
the exhibition of a work of art at a public exhibition where there are
by-laws against copies or where it is tacitly understood that no copying
shall take place, and the public are admitted to view the painting on
the implied understanding that no improper advantage will be taken of
the privilege. We think this doctrine is sound and the result of the
best considered cases." The court said further: "We do not mean to say
that the public exhibition of a painting or statue where all might see
and freely copy it might not amount to publication within the statute,
regardless of the artist's purpose or notice of reservation of rights
which he takes no measure to protect."

{Sidenote: Unrestricted exhibition hazardous}

In fact, in Pierce & Bushnell Co. _v._ Werckmeister, in 1896, the U. S.
Circuit Court of Appeals, through Judge Colt, had held that the
exhibition of Naujok's painting of St. Cecilia, in Berlin and Munich,
without copyright notice on the original work, constituted publication
and dedication, and therefore denied protection to photographic copies
thereafter copyrighted and published.

{Sidenote: Reservation on sale}

That the sale of the original work of art as a material object does not
involve the transfer of the copyright is a direct application in the new
American code of previous judicial decisions. In Werckmeister _v._
Springer Lith. Co., in 1894, where the defense contended that the
purchaser of a painting was the person authorized to become the
copyright proprietor, this contention was absolutely overruled, in the
U. S. Circuit Court in New York, by Judge Townsend. But it may
nevertheless be desirable to include in any contract of sale a specific
reservation of copyright, especially in the case of works executed for
public authorities or to be exhibited in a public place. In Dielman v.
White, in 1900, Judge Lowell in the U. S. Circuit Court in Massachusetts
declined to enjoin a photograph of certain mosaics by Dielman in the
Library of Congress, the original cartoon for which as sent to Venice,
as well as the mosaic work itself, bore copyright notice, on the ground
that the correspondence with the government constituting the contract,
did not clearly reserve to the artist the right to copyright and prevent
copying,--though this decision may be questioned.

{Sidenote: Publication construed}

The courts are disposed to limit the definition of publication to insure
the fullest protection of an author's right. In Werckmeister _v._
Springer Lith. Co. it was further held by Judge Townsend that the
printing in an exhibition catalogue of a cut of a painting was for the
information of patrons and was not publication. In the same case the
defense contended that the sale of an earlier replica of the plaintiff's
painting constituted a publication and forfeited copyright, but the
court held that the replica was not a copy but was made beforehand to
assist in the preparation of the painting afterward copyrighted, and
that there was no publication.

In Falk _v._ Gast, in 1893, where the defense claimed that the copyright
notice was omitted from published copies, referring to a sample sheet of
miniature reproductions sent to dealers for their information and
convenience, the U. S. Circuit Court of Appeals, through Judge Shipman,
held that this issue of sample sheets did not constitute publication.
This doctrine of limitation had a curious application in Harper _v._
Shoppell, in 1886, in which Judge Wallace, in the U. S. District Court,
held, where an electrotyper had sold to a third party an unauthorized
electrotype of a copyrighted illustration, that the copyright law was
not violated because the illustration had not been printed or published.

{Sidenote: Danger of forfeiture}

The artist-author or the proprietor of an artistic copyright should be
most careful to comply with the statutory requirements as to notice and
other formalities, as otherwise copyright may be forfeited. Several
court decisions indicate that the copyright notice should be placed on
the original when exhibited, even if copies are not then reproduced for
sale; and as the question is not made quite clear in the new code, it is
wise to follow this indication. In the original trial in 1902 of the
Werckmeister case, Judge Thomas in the U. S. Circuit Court held that the
omission of copyright notice from the exhibited original waived the
copyright, but his decision of the case was reversed by the U. S.
Supreme Court on other grounds as previously stated, and this particular
point remains unsettled.

Copyright is not forfeited where a notice properly affixed has been
omitted in later use beyond the control of the copyright proprietor. "If
copied afterwards or put upon a new mount the complainant should not
suffer," said Judge Coxe in Falk _v._ Gast in reference to copies from
which the notice had been separated. In Bennett _v._ Carr, in 1899, the
U. S. Circuit Court of Appeals, through Judge Thomas, non-suited the
complainant because he had not deposited a written description, in
addition to filing identifying copies, both formalities being required
under the old law.

{Sidenote: Limited use and license}

The principle is especially important regarding works of art that a
copyright proprietor may grant specific license for the limited use of
his work; and this has many times been upheld by judicial decisions. In
the American courts, such cases have usually been settled by preliminary
injunction, without further trial, so that most of the cases are
unreported in the law digests, as in that of Miles _v._ American News
Co., in 1898, where General Miles obtained a preliminary injunction
restraining the distribution by the defendants of "Remington's frontier
sketches," including illustrations made for and copyrighted in General
Miles' "Personal recollections." In the English case of Nicholls _v._
Parker, in 1901, it was held that a license to print illustrations in
the _Graphic_ did not permit their use in another periodical of the
defendant despite the defense of "custom of the trade," which the judge
characterized as "ridiculous." In the important case of Green _v. Irish
Independent_, the Court of Appeal held that the newspaper, though acting
"in good faith and without knowledge," was guilty of infringement in
printing an illustration sent to it as an advertisement which the
proprietor had not licensed for such use. Where, in Guggenheim _v._
Leng, in 1896, the periodical _Sports_ printed and sold as a separate
sheet an illustration licensed for use in the periodical, it was held in
the Queen's Bench Division that publication and sale of the supplement
separately from the paper was beyond the terms of the license and
therefore an infringement.

{Sidenote: Character, not method of use}

Copyright in a work of art is dependent upon character rather than use.
"A picture is none the less a picture and none the less a subject of
copyright that it is used for an advertisement," said Justice Holmes in
the U. S. Supreme Court, in Bleistein _v._ Donaldson Lith. Co., in 1903,
the leading case on this subject, in which three lithographs designed
for a circus poster were protected. In Mott _v._ Clow, in 1896, Judge
Grosscup in the U. S. Circuit Court in Illinois had held that
illustrations, in this instance of bathtubs in a trade catalogue, which
"are mere advertisements," are not entitled to copyright; and in
Schumacher _v._ Wogram, in 1888, it had been held by Judge Wallace that
a picture of a young woman holding a bouquet intended for a cigar label
could not be protected as copyright, but should be registered as a
trade-mark. "The distinction here," said Judge Wallace, "seems to be
that a picture expressly intended as a label should be considered a
trade-mark, though a picture which may be used for a label is not for
this reason excluded from copyright." An artistic design for paper-box
covers was held copyrightable in 1910 in De Jonge _v._ Breuker &
Kessler, in the U. S. Circuit Court, by Judge McPherson, who also held
that the same subject could not be protected both under copyright and as
trade-mark.

{Sidenote: Illustration}

That an illustration of a person, incident or scene in a copyright work
is not an infringement of its copyright, was indicated in 1909 in Harper
_v._ Kalem Co., in the opinion of the U. S. Circuit Court of Appeals in
New York, through Judge Ward, who said: "As pictures only represent the
artist's idea of what the author has expressed in words, they do not
infringe a copyrighted book or drama and should not be enjoined." That
illustrations may be protected as part of a book without reference to
the engravings act, was held in Marshall _v._ Bull, in 1901, in the
English Court of Appeal, which held also that though electrotype blocks
had been legally sold, unauthorized reproduction from such blocks
constituted infringement.

{Sidenote: Description of artistic work}

Likewise, a description in words of a copyrighted work of art is
probably permissible without infringement of copyright, when the work is
published or publicly exhibited. But this does not hold good in the case
of an unpublished or privately exhibited work, as was held in 1849 in
the case of Prince Albert _v._ Strange, where a descriptive catalogue of
unpublished etchings by Queen Victoria and the Prince Consort was
enjoined, as well as the exhibition of prints therefrom unlawfully
obtained.

{Sidenote: Portraits}

In the case of portraits, whether by painting, sculpture or photography,
an important question as to ownership arises. A portrait paid for by the
subject or a person other than the artist is the property, for copyright
as well as other purposes, exclusively of that person; but if an artist
produces a portrait at his own expense, even if by the suggestion of
another person, the right to copyright remains with the artist. The
general principle was best stated by Judge Wheeler in 1894, in the U. S.
Circuit Court in New York, in Press Pub. Co. _v._ Falk, where the
_World_ was held to have infringed the copyright in the photograph of an
actress, copyrighted by the photographer and not paid for by her, though
a complimentary copy, given to the actress, had been sent by her to the
newspaper. "When a person has a negative taken and photograph made, for
pay, in the usual course, the work is done for the person so procuring
it to be done, and the negative, so far as it is a picture or capable of
producing pictures of that person, and all photographs made from it,
belong to that person; and neither the artist nor any one else has any
right to make pictures from the negative or copy the photographs, if not
otherwise published, for any one else. But when a person submits himself
or herself as a public character to a photographer for the taking of a
negative, and the making of photographs therefrom for the photographer,
the negative and the right to make photographs from it belong to him. He
is the author and proprietor of the photograph, and may perfect the
exclusive right to make copies by copyright." The same principle was
upheld in the closely similar English case of Ellis _v._ Ogden, in 1894,
by Justice Collins in the Queen's Bench Division. But in the case of
Ellis _v._ Marshall, in 1895, Justice Charles in the same court held
that where two actors had been invited by a photographer to sit for him
in costume and some photographs had also been taken in plain clothes, of
which the actors purchased copies, they were entitled to authorize
publication in a magazine. It may be noted that New York and other
states have statutes forbidding portraiture of persons without their
consent; but this prohibition would probably not apply to photographing
of a crowd, unless the portrait of a special person were lifted out or
made prominent. A photographer may not exhibit a photograph of a patron,
as in his shop window, without the sitter's consent.

{Sidenote: Right of employer}

The employer of an artist in other work as well as portraiture may
become _ipse facto_ the copyright proprietor. In 1871, in Stannard _v._
Harrison, where a wall map had been made by an engraver from rough
sketch and material and from directions given by the plaintiff, the
English Court of Chancery, through Vice-Chancellor Bacon, held: "That
the plaintiff cannot draw himself is a matter wholly unimportant if he
has caused other persons to draw for him. He invents the subject of the
design beyond all question ... this is a work of diligence, industry,
and for aught I know of genius on the part of the plaintiff." This case,
which arose under the engravings acts in England, where an engraving may
be copyrighted by an employer,--though the engraver of his own original
design is the only person entitled to copyright,--is of wide bearing
throughout artistic copyright. On the other hand, in 1898, in Bolton
_v._ London Exhibitions Co., Justice Mathew in the Queen's Bench
Division held that the employer, who had given to the engraver only a
"general idea" of what he desired, was not the party liable for
infringement.

{Sidenote: Photographs}

Photographs, a modern development since the early copyright laws, were
first included with negatives in the American act of 1865, in respect to
which the action of Congress was upheld by the U. S. Supreme Court in
1884 in the decisive case of Burrow-Giles Lith. Co. _v._ Sarony, and in
the English fine arts copyright act of 1862. They are specifically named
(sec. 5, j) in the new American code, and are included specifically or
impliedly under copyright protection in most countries. The peculiar
circumstance that the skill of the photographic artist is not
necessarily shown in the composition of the picture taken, but more
usually in the selection of subject or point of view and treatment in
the process, leads to complexities as to authorship, ownership, etc. It
is unnecessary and indeed undesirable to copyright separately a
photograph of a copyrighted work, of which the general copyright is
comprehensive of all reproductions, but the original copyright notice
including the name of the artist must appear on each photograph or its
mount. An original photograph of an uncopyrighted or uncopyrightable
subject may be copyrighted as a photograph, as was held with respect to
natural scenery in 1903, in Cleland _v._ Thayer, in the U. S. Circuit
Court of Appeals, where a colored photograph of a Colorado pass was
protected. Where a photographer had posed a woman and a child
characteristically, Judge Wheeler in the U. S. Circuit Court in New York
held, in 1891, in Falk _v._ Brett Lith. Co., where defendant had merely
reversed the photograph in a lithographic reprint, that the photograph
was copyrightable and that the photographer was the author. And this
doctrine, that the posing and treatment of a photograph subject gave
justification for copyright, was also upheld in the case of a portrait
of an actress in the same year in Falk _v._ Gast by Judge Coxe. In the
English case of Bolton _v._ Aldin _et al._, in 1895, Justice Grantham in
the Queen's Bench Division held that the photograph of a tiger was
infringed by a drawing from the photograph published in the _Sketch_
magazine. But the copyrighting of a photograph of an uncopyrighted
subject cannot prevent the photographing of the same subject
independently by others, nor can the use of a "general idea" be
prevented. Under the new American code, the fee for registering a
photograph is but fifty cents, if a certificate is not desired, and the
new Copyright Office Rules hold that in moving picture films only one
registration is requisite, "the entire series being counted as a single
photograph."

{Sidenote: Tableaux vivants and moving pictures}

Whether living pictures, _tableaux vivants_, infringe a work of art, is
a difficult question, determinable only by the circumstances of each
case. Moving pictures telling a dramatic story may infringe a dramatic
or even literary work, as well as possibly a work of art, as was decided
in the case of Harper _v._ Kalem Co. But the House of Lords, in 1894, in
the case of Hanfstaengl _v._ Baines, where the proprietor of the
copyright in paintings sued the proprietors of the _Graphic_ for
reproducing by sketches living pictures exhibited at a music hall,
patterned after the paintings, decided that the word "design" in the
English law did not cover the _tableaux_ at the music hall. It is
probable, however, that an exact reproduction, as nearly as may be, of a
painting at a public place, might be held an infringement. In 1903 the
Circuit Court of Appeals through Judge Buffington, in Edison _v._ Lubin,
overruled the defense that each picture making up a moving picture
series should be separately registered for copyright. But separable
parts of a composite design, when used separately, must bear separate
copyright notice, as was held in 1910 in De Jonge _v._ Breuker & Kessler
by Judge McPherson in the U. S. Circuit Court.

{Sidenote: Exclusions and inclusions construed}

A shadow-trick perforated card, giving an outline of the picture "Ecce
Homo" when held between a light and a screen, was held by
Vice-Chancellor Bacon, in Cable _v._ Marks, in 1882, not to be subject
of copyright. Playing cards have been included as prints by an English
decision.

{Sidenote: Architectural works}

Architectural works are not protected as such under the American code,
the decision of the Congressional Committees being adverse to this
proposal. They are specifically included in the new British code. It is
possible that they might be included under the general designation of
works of art, and drawings or models for buildings might be copyrighted
as "drawings or plastic works of a scientific or technical character."
The question, however, is one of much doubt. In 1903, in Wright _v._
Eisle, the Appellate Division of the N. Y. Supreme Court, through Judge
Woodward, held, where an architect had filed plans with the building
department which he claimed were copied in a house of the defendant,
which plans had not been copyrighted, that the filing of the plans in a
public office constituted publication and as there were no copyrighted
copies, there was no case at common or copyright law.

{Sidenote: Copy of a copy}

A copy of a copy is an infringement of the original work and
incidentally of the direct copy, unless the latter is published without
proper copyright notice by authority of the proprietor of copyright in
the original. This was held in 1892, in Lucas _v._ Williams, by the
Queen's Bench, where a photograph from an engraving was held an
infringement of the original painting; and the decision of Judge
McPherson in the U. S. Circuit Court in Pennsylvania non-suiting, in
Champney _v._ Haag, in 1903, the proprietor of a copyright painting
because the offending photograph infringed only the copyrighted
photograph from which it was directly taken, is not considered good law.
A photograph may infringe the copyright in statuary, as was held in
1907, in Bracken _v._ Rosenthal, in the U. S. Circuit Court.

{Sidenote: Alterations}

As to altered copies and alterations, there have been many judicial
decisions, the gist of which is that a copy is not less an infringement
because it alters details, provided there is copying of a substantial
part; that a copy in another medium not exactly reproducing the original
or a copy of it, is nevertheless an infringement; that a substantial
alteration, or adaptation of an existing work, may in itself be
copyrightable, but that slight alterations will not justify the
copyrighting of a work in the public domain; and that an artist has the
right to prevent alteration of his original work by a subsequent owner,
as involving damage to his professional reputation. Where a copyrighted
portrait of Lillian Russell was combined with a portrait of another
actress, the composite photograph was held to be a violation of the
copyright, in Springer Lith. Co. _v._ Falk, in 1894, by the U. S.
Circuit Court of Appeals, through Judge Lacombe. So in the English case
of Bolton _v._ London Exhibitions Co., in 1898, where a lithographer
copied the outline of a lion from a copyrighted photograph, and filled
in details from natural histories in making a circus poster, Justice
Mathew in the Queen's Bench Division held that there had been
reproduction of the photograph and that a work of art had been
"vulgarized unlawfully." Where certain etchings and engravings had been
copied by the Brooklyn Photogravure Co., omitting the tints, plate mark
and title, it was held in 1892, in Fishel _v._ Lueckel, by Judge
Townsend in the U. S. Circuit Court in New York that this was an
infringement; said Judge Townsend: "The appropriation of a part of the
work is no less an infringement than the appropriation of the whole,
provided 'the alleged infringing part contains any substantial
repetitions of any material parts which are original and distinctive."
And where a photograph of Julia Marlowe was reproduced in a lithograph,
with many points of dissimilarity, some of them because of difference in
process, it was held in Falk _v._ Donaldson Lith. Co., in 1893, by Judge
Townsend in the U. S. Circuit Court in New York, that the differences
did not constitute a defense. In Dr. Gaunsaulus's book, "The Man of
Galilee," well-known pictures were altered substantially and
artistically, as by the omission of a spinning wheel from a picture of
the Nativity. Copies made from these illustrations were enjoined, though
the original pictures were non-copyrighted, in Monarch Book Co. _v._
Neil, in 1900, by Judge Grosscup in the U. S. Circuit Court in Illinois.
But a slight alteration, by the addition on the negative of a cane, thus
put into the hands of a person in a photograph not copyrighted in its
original form, was held not to justify copyright, in Snow _v._ Laird, in
1900, by Judge Woods in the U. S. Circuit Court of Appeals. In the N. Y.
Supreme Court, in the common law case of Dodge _v._ Allied Arts Co., in
1903, where the plaintiff had painted four historical scenes on
commission which the defendants proposed to have altered, an injunction
pending suit was granted by Judge McCall, thus upholding the common law
or equity right of an artist to be protected against such misuse of his
work.

{Sidenote: Remedies}

For the infringement of a work of art the copyright proprietor is
entitled (sec. 25) to an injunction, the forfeiture of infringing copies
and to damages "as well as all the profits ... or in lieu of actual
damages and profits such damages as to the court shall appear to be
just," not less than $250 nor more than $5000, except that "in the case
of a newspaper reproduction of a copyrighted photograph such damages
shall not exceed $200 nor be less than $50." These damages, within the
limits stated, may be assessed by the court in the case of painting,
statue or sculpture at ten dollars, and in the case of any other works
at one dollar, "for every infringing copy made or sold by or found in
the possession of the infringer or his agents or employees." Under the
old law, damages were confined to copies found in possession, and the
courts were constrained to apply this literally though in several
recorded cases with evident injustice.

{Sidenote: Artistic copyright term}

Copyright in artistic works in the United States has always been covered
under the general copyright acts, including the code of 1909 providing
for copyright for twenty-eight and renewal for a second twenty-eight
years, and this is true also in Canada and Newfoundland, where the term
is for twenty-eight with renewal for fourteen years. The Australian code
of 1905 covers artistic copyright specifically in part IV of the act,
which provides for the general term of forty-two years from "the making
of the work" or life and seven years, whichever the longer, but confines
it to artistic work "which is made in Australia."

{Sidenote: British practice}

Artistic copyright in Great Britain, on the contrary, has been protected
by several concurrent acts beginning with the engraving copyright acts
of 1734 and 1767 and including the prints copyright act of 1777, the
sculpture copyright act of 1814, the prints and engravings copyright
(Ireland) act of 1836 and the fine arts copyright act of 1862 covering
paintings, drawings and photographs, previously unprotected,--all
forming part of the English law until repealed by the new code. Under
these several laws, the copyright term for paintings, drawings and
photographs has been the life of the author and seven years, for
engravings twenty-eight years from first publication and for sculpture
fourteen years from first publishing and renewal for fourteen years.
Under the act of 1862--which did not afford protection outside the
United Kingdom, as was affirmed by the Privy Council in 1903, upholding
a Canadian decision, in Graves _v._ Gorrie--copyright in artistic works
began with the making of the work wherever made (except that a foreigner
must be resident in England apparently at the time of making) and did
not depend upon publication; but the international copyright act of 1844
nevertheless denied protection in Great Britain where a work was first
published in a country outside of treaty relations. Registration at
Stationers' Hall, at a cost of one shilling, has been a prerequisite to
protection. The right to copyright lapsed when the original work was
sold by the artist without previous registration or written reservation,
a provision applied in 1909 in Hunter _v._ Clifford.

{Sidenote: Sculpture provisions}

An original work of sculpture was protected only if first published
within the British dominions, if by a British subject or resident,
provided it bore the proprietor's name and date of first publication;
and renewal for a second fourteen years was possible only if the author
was then alive and held the copyright. Toy soldiers, artistically
modeled, were protected in England as a work of sculpture by Justice
Wright in Britain _v._ Hanks, in 1902. Common law protected until and
statute law after publication, _i. e._ when the public in general is
first permitted to view the work.

{Sidenote: Engraving provisions}

An engraving was protected in Great Britain and Ireland, if first
published (and probably also made) within the British dominions,
provided it bore the proprietor's name and date of publication. Prints,
as by lithography or otherwise, were included with engravings; maps,
charts and plans were, however, included as books under the general
copyright act. Also engravings which are part of a book enjoy the wider
protection of the general copyright act. The sale of the plate of an
engraving probably does not transfer the copyright, unless intention to
do so is clearly evident.

{Sidenote: The new British code}

The new British code includes as an "artistic work" under the general
copyright provisions, "works of painting, drawing, sculpture and
artistic craftsmanship, and architectural works of art and engravings
and photographs." Architectural works are protected only as regards
artistic character or design as distinguished from process or methods of
construction. Photographs have the exceptional term of fifty years from
the making of the original negative, and the owner of such negative at
the time of making is considered the author. Registration is no longer
required.

{Sidenote: Foreign countries}

Works of art are protected in most foreign countries either impliedly or
specifically under general copyright legislation, although sometimes by
special laws. France covers artistic works "whatever may be the merit,
use or destination of the work"; the Scandinavian countries include
specifically drawings, etc., "not works of the fine arts"; in India
copyright is extended in industrial designs to "some peculiar shape or
form given an article, but not the article itself." Architectural works
are protected in France, Luxemburg and Brazil, but in most countries
only architectural plans, drawings, designs, figures, or models and not
buildings are covered. Geographical and topographical drawings and
technical drawings, maps and charts, illustrations, engravings, in some
cases lithographs, photographs, and negatives are among classes
specified in many countries. In some countries the term of copyright is
different in the case of artistic works. Luxemburg has the peculiar
provision that portraits may not be reproduced until twenty years after
the death of the person portrayed. Photographs are in several countries
protected for a shorter term, frequently five years from taking,
publication or registration as the case may be; in Norway the copyright
may not extend beyond the death of the photographer.

{Sidenote: Berne convention, 1886}

When the International Copyright Union was created at Berne in 1886,
artistic works were conjoined with literary works under like protection
throughout the convention and they were specified (art. IV) as covering
"works of design, painting, sculpture, and engraving; lithographs,
illustrations, geographical charts; plans, sketches, and plastic works
relative to geography, topography, architecture, or science in general;
in fact, every production whatsoever in the ... artistic domain which
can be published by any mode of impression or reproduction." In the
final protocol it was specifically provided: "(1) As regards article IV,
it is agreed that those countries of the Union where the character of
artistic works is not refused to photographs, engage to admit them to
the benefits of the Convention, from the date of its coming into effect.
They are, however, not bound to protect the authors of such works
further than is permitted by their own legislation, except in the case
of international engagements already existing, or which may hereafter be
entered into by them. It is understood that an authorized photograph of
a protected work of art shall enjoy legal protection in all the
countries of the Union, as contemplated by the said Convention, for the
same period as the principal right of reproduction of the work itself
subsists, and within the limits of private arrangements between those
who have legal rights."

{Sidenote: Paris declaration; 1896}

In the amendatory act adopted at Paris in 1896, the final protocol of
1886 was modified respecting architectural and photographic works as
follows (1, a, b): "In the countries of the Union in which protection is
accorded not only to architectural designs, but to the actual works of
architecture, those works are admitted to the benefit of the provisions
of the Convention of Berne and of the present additional act.

"Photographic works, and those obtained by similar processes, are
admitted to the benefit of the provisions of these acts, in so far as
the domestic legislation allows this to be done, and according to the
measure of protection which it gives to similar national works.

"It is understood that the authorized photograph of a protected work of
art enjoys legal protection in all the countries of the Union, within
the meaning of the Convention of Berne and the present additional act,
as long as the principal right of reproduction of this work itself
lasts, and within the limits of private conventions between those who
have legal rights."

{Sidenote: Berlin convention, 1908}

In the Berlin convention of 1908, artistic works were defined (art. 2,
par. 1) by specification as "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,"--thus covering architectural
works under general copyright. It was further provided by the convention
of 1908 (art. 2, par. 4) that "works of art applied to industry are
protected so far as the domestic legislation of each country allows."
And article 3 provided: "The present Convention applies to photographic
works and to works obtained by any process analogous to photography. The
contracting countries are pledged to guarantee protection to such
works."

{Sidenote: Exhibition not publication}

By the interpretative declaration adopted at Paris in 1896, it was
specifically provided (sec. 2): "By _published_ works must be understood
works actually issued to the public in one of the countries of the
Union. Consequently,... the exhibition of a work of art, does not
constitute publication in the sense of the aforementioned Acts." In the
Berlin convention of 1908 it was similarly provided (art. 4, par. 4)
that "the exhibition of a work of art and the construction of a work of
architecture do not constitute publication."

{Sidenote: Pan American Union}

In the Pan American Union, the Buenos Aires convention of 1910 covers
artistic works on the same basis as literary works, without special
provisions.



XIV

INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE" AND "UNFAIR COMPETITION"


{Sidenote: Piracy}

The word "piracy," since that gentle craft has disappeared from the high
seas, has come commonly into use to mean free-booting with reference to
literary property. In this sense it is used as early as 1771 by Luckombe
in his history of printing, in which he says: "They ... would suffer by
this act of piracy, since it was likely to prove a very bad edition." It
was especially applied in America more or less jocularly in the days
when there was no legal protection for works by English authors, to the
reprinting chiefly of English novels without authority from or payment
to their authors, when publishers whose imprints were chiefly on such
reprints were commonly known as pirates. This secondary meaning has been
accepted by the dictionary makers, and the use by English law
authorities, and now in the new American code, of the phrases "pirated
works" and "piratical copies," gives the word specific legal _status_.
It is the comprehensive term now in common and legal use to mean the
stealing of an author's work by reprinting it in full or in substantial
part without the authority of the copyright proprietor, and is in fact
an infringement at wholesale or otherwise of the author's exclusive
right. This is of course prohibited by the law to the full extent of its
jurisdiction and is punishable as prescribed in the law.

{Sidenote: Test of piracy}

"The true test of piracy," said Judge Shipman in the U. S. Circuit Court
in 1875, in Banks _v._ McDivitt, is "whether the defendant has in fact
used the plan, arrangements and illustrations as the model of his own
book, with colorable alterations and variations, or whether his work is
the result of his own labor, skill and use of common materials and
common sources." Judge Story said in 1841, in Folsom _v._ Marsh: "If so
much is taken that the value of the original is sensibly diminished, or
the labours of the original author are substantially, to an injurious
extent, appropriated by another, that is sufficient in point of law to
constitute a piracy _pro tanto_. The entirety of the copyright is the
property of the author and it is no defence that another person has
appropriated a part and not the whole of any property."

{Sidenote: Infringement in specific meaning}

Infringement is commonly taken to mean specific invasion of the author's
rights rather than wholesale piracy; and the question of what is
infringement or "literary larceny" is more often a question of the
interpretation of the facts than the construction of the statute. The
legal cases arising under infringement constitute a very large
proportion of copyright litigation, demanding as they do judicial
determination as to the acts complained of in each particular case. It
is therefore impossible in this volume to give citations or references
for the hundreds of cases recorded in the law reports or in the various
works on copyright, but it may be noted that the foot-note citations in
MacGillivray's "Law of copyright" cover a very large number of American
as well as English cases. No treatise on copyright can apply, however,
in advance, the general principles of copyright to the infinite variety
of possible cases; and only generalizations and a few illustrative cases
can here be given.

{Sidenote: Questions of fact and intent}

Infringement is a question of fact rather than of intent. It is not a
valid defense that the infringer is ignorant; nor, on the other hand,
can any one be held for intention to infringe, where the act of
infringement has not been accomplished. The new American code,
nevertheless, recognizes knowledge and intent in certain cases of
punishment or damages by the use of the words "willfully" and
"knowingly." The letter of the law is in general that the infringer must
be held responsible and must make good any damages suffered by the
copyright proprietor, but proof that he had no guilty knowledge or
intent may effect mitigation of punitive damages. The trend of court
decisions and of judicial opinion does not seem to be evident and
consistent in this development; but it may perhaps be said that while
copyright law is more closely applied from the letter of the statutes,
in the legal aspect, the principles of equity have been given freer play
where the statute is not specific and definite. In 1899, in Green _v.
Irish Independent_, the English Court of Appeal held that the
proprietors of a newspaper who had printed an advertisement containing
an illustration which the advertiser had license to use only for
specified purposes, were liable for penalties, though they did not know
that the illustration was copyrighted; and in 1902, in American Press
Assoc. _v._ Daily Story Pub. Co., the U. S. Circuit Court of Appeals
held the defendants liable, though they had innocently copied from a
newspaper reprint which had inadvertently omitted the copyright notice.
But in 1898 Justice Mathew, in Bolton _v_. London Exhibitions, declined
to hold the defendants punishable, because they did not know that the
lithographer from whom they had ordered a poster had infringed the
copyright of a photograph.

{Sidenote: "Fair use"}

"Fair use" means quotation from or other use of an author's work within
the evident meaning or judicial construction of the copyright statute,
and is the usual answer of the defendant to a complaint that he has
taken without authority some portion of the author's work or utilized in
some way the result of the author's labors. The borderland between
infringement and "fair use" is peculiarly and necessarily one of
uncertainty, not so much because of ambiguity in the statute as of
difficulty in determining the extent of use within which it is said _non
curat lex_. No statute can be so clear or so complete as to obviate
questions of this kind. In general there must be copying of a material
or substantial part. What is a material or substantial part,
constituting infringement, is a difficult question of fact.

{Sidenote: Principle of infringement}

"Copying is not confined to literal repetition," said Judge Clifford, in
Lawrence _v._ Dana, in the U. S. Circuit Court in 1869, "but includes
also the various modes in which the matter of any publication may be
adopted, imitated, or transferred, with more or less colorable
alterations to disguise the source from which the material was derived;
nor is it necessary that the whole, or even the larger portion of the
work, should be taken in order to constitute an invasion of copyright."
The Chancery Division, through Lord Chief Justice Alverstone, took the
extreme course in Trengrouse _v._ "Sol" Syndicate, in 1901, of holding a
work an infringement, though less than a page was taken from the
plaintiff's football guide.

{Sidenote: Infringement by indirect copying}

Infringement may be by indirect as well as by direct copying. In the
case of Cate _v._ Devon in 1889, in the Chancery Court, the defense that
the copying was not from the original copyright work but from a
newspaper reprint, was rejected. Infringement may be through quite a
different medium from the original; thus a shorthand reproduction of a
lecture on "The dog as the friend of man," published in a text-book of
shorthand, was held in the Chancery case of Nichols _v._ Pitman, in
1884, to be an infringement of the lecture as much as if in ordinary
type.

{Sidenote: Exceptions from infringement}

The doctrine of infringement cannot be invoked to obtain monopoly of any
particular subject, and the authorized biographer of President Garfield
was denied relief in 1889, in Gilmore _v._ Anderson, when he sought to
prevent the publication of a life of Garfield by another writer. Nor
will mere similarity of treatment of the same subject constitute
infringement. A copyright owner cannot prevent another person from
publishing the matter contained in his book, if invented or collected
independently, or from making "fair use" of its contents. Two
map-makers, collecting at first hand the same _data_, would naturally
make the same map, and each would equally be entitled to copyright. In
this respect, copyright law differs from patent law, where a first use
bars others from the same field. It has even been held that the
collected material might be used by a second compiler as a guide in a
second compilation, if subjected to original verification, as in the
case of a street directory. But in the case of rival Boston directories
in 1905, the U. S. Circuit Court of Appeals held, in Sampson & Murdock
Co. _v._ Seaver Radford Co., that a verification by actual canvass from
a list of discrepancies made up from the earlier work was beyond fair
use.

{Sidenote: Infringement by abridgment and compilation}

Abridgments were construed by early English decisions not to be
infringements, and this precedent was followed, reluctantly and often
with protest, in later cases by English and American judges, as set
forth in the chapter on subject-matter. Later copyright provisions,--as
by use of the word "_retranchements_" in the Berne-Berlin conventions,
and the specific authorization in the American code "to make any other
version thereof," and for copyright of an abridgment of a work in the
public domain,--directly or by implication, make abridgment an
infringement and free the courts to take this view. Compilations also
constitute infringement if they extract substantial parts of a copyright
work, beyond the limits of "fair use," or even if they adopt the plan or
arrangement or bodily transfer the material of a copyright compilation
of non-copyright matter.

{Sidenote: Abridged compilations}

A curious complaint of infringement by abridgment was made in Gabriel
_v._ McCabe, in 1896, before Judge Grosscup in the U. S. Circuit Court
in Illinois, where the plaintiff had licensed the use of a copyright
song, "When the roll is called up yonder," in a collection of religious
poetry, "The finest of the wheat, no. 2," published by the defendant,
who included the song also in an abridged edition of this collection and
in a combined edition of this and another collection. Judge Grosscup
held that: "Future editions of a book may contain a composition
published in an earlier edition by license, even though parts of the
earlier edition are omitted.... To hold otherwise would practically
forbid any new editions of books of compilations, for the consent of all
the authors contributing could not, in many instances, be obtained." But
if the collection had been so abridged as to result in the publication
of the song alone as sheet music, it would have been an unfair use under
the license.

{Sidenote: Separation of infringing parts}

The general principles as to quotation beyond "fair use" were well laid
down by Lord Chancellor Eldon, in the early English case of Mawman _v._
Tegg, in 1826: "If the parts which have been copied cannot be separated
from those which are original, without destroying the use and value of
the original matter, he who has made an improper use of that which did
not belong to him must suffer the consequences of so doing. If a man
mixes what belongs to him with what belongs to me, and the mixture be
forbidden by law, he must again separate them, and he must bear all the
mischief and loss which the separation may occasion. If an individual
chooses in any work to mix my literary matter with his own, he must be
restrained from publishing the literary matter which belongs to me; and
if the parts of the work cannot be separated, and if by that means the
injunction, which restrained the publication of my literary matter,
prevents also the publication of his own literary matter, he has only
himself to blame."

{Sidenote: Law digests}

The difficult question of the extent to which a compiler may utilize the
materials of another has come especially to the front in the American
courts with reference to law digests and reports, within recent years.
In 1896, in Mead _v._ West Pub. Co., concerning rival annotated editions
of "Stephen on pleading," then out of copyright, where the defendant's
editor admitted having clipped the text from the complainant's edition
and having obtained some ideas or suggestions from it, Judge Lochren, in
the U. S. Circuit Court in Minnesota, held that there was no
infringement because non-copyright matter could not be protected in a
copyright work from such clipping, because the defendant's notes were
original even though suggested from the other, and because the few
errors and citations in common were immaterial since there were many new
citations and the work was on the whole the result of original research.
That bodily transfer of citations is beyond "fair use" was emphasized by
Judge Ray in White _v._ Bender, in 1911.

{Sidenote: Proof from common errors}

As to proof from common errors, it had been held in 1895, in the case of
Chicago Dollar Directory Co. _v._ Chicago Directory Co., that the later
work, containing sixty-seven errors found in the other, was evidently an
infringement of the earlier compilation. In Bisel _v._ Welsh, _Re_
Brightly Pennsylvania reports, in 1904, the U. S. Circuit Court held
that repetitions of errors in citations were evidence of infringement by
the author of his own reports published under an earlier contract by the
plaintiffs; and in 1911, in Shepard _v._ Taylor, Judge Hazel held that
common errors were _prima facie_ proof of infringement.

{Sidenote: Infringement in part}

{Sidenote: No infringement of piracies or frauds}

In the important case of West Pub. Co. _v._ Lawyers' Pub. Co., where a
collection of selected cases and a general digest were alleged to be
infringements of the plaintiff's reports and monthly digests, Judge Coxe
in the U. S. Circuit Court enjoined 303 proved "instances of piracy" but
not the remaining portions of the digest, but in 1897 the U. S. Circuit
Court of Appeals, through Judge Lacombe, held that under such
circumstances the burden of proof must be on the unfair user and
broadened the decision by issuing an injunction against the work as a
whole, excepting those parts which were public property. In 1910, in
Park & Pollard _v._ Kellerstrass, Judge Philips enjoined the whole work
because the infringing parts were not separable. In 1903, in Thompson
Co. _v._ American Law Book Co., where the editor of the defendant's law
encyclopædia had made a list of cases cited in complainant's work, which
included material "pirated" by the complainant from copyright works, the
Circuit Court of Appeals, reversing the lower court, held through Judge
Coxe that there was no infringement, because the only use made of the
list was to guide the defendant to the reports and because the
complainant had no standing in equity. "If the defendant was guilty of
piracy, so was the complainant; and equity will not protect a pirate
from infringements of his piratical work." To like effect in Slingsby
_v._ Bradford Co., in 1905, Justice Warrington, in the Chancery
Division, held that the plaintiff could not recover against an evident
copying because his own catalogue was fraudulent in advertising as
patented articles not so protected, and a fraud will not be protected.
In the later case of West Pub. Co. _v_. Thompson Co., where the
publishers of the original reports and digests sought to restrain the
Thompson encyclopædias, the Circuit Court of Appeals held that while a
compiler may use a copyright digest by making lists from which to run
down cases, which is "fair use," extensive copying or paraphrasing of
the language of the digest, whether to save literary work or mechanical
labor, constitutes an infringement. The case was sent back to the lower
court for rehearing and assessment of damages and was settled in 1911 by
an agreement involving transfer of the encyclopædia to the plaintiff.
Reference to a copyright work giving pagination is not an infringement,
as was decided in 1909, in Banks Law Pub. Co. _v._ Lawyers Co-operative
Pub. Co., in the U. S. Circuit Court of Appeals.

{Sidenote: Quotation}

Whether simple quotation constitutes an infringement or is "fair use,"
depends upon extent and in some respects upon purpose. In 1892 Justice
North, in the English Court of Chancery, in Walter _v._ Steinkopff, held
that the use by the _St. James Gazette_ of two fifths of an article by
Kipling, copyrighted by the _Times_, was beyond "fair use" of
quotations, notwithstanding the newspaper custom of copying from one
another. On the other hand, quotations in a review of a book made to
reasonable extent for the purposes of criticism, have usually been
considered "fair use," provided they do not go to the extent of a
description or abridgment which would be measurably a substitute for the
book.

{Sidenote: Private use}

The multiplication of copies by handwriting or other process for private
use, as among the members of an orchestra or in a business office, has
been held an infringement in English decisions, though prohibition of
the making of a single copy for personal use would be an extreme
application of this doctrine, and such use is specifically permitted in
the new English code.

{Sidenote: The doctrine of "unfair competition"}

Beyond the purview of copyright law, there is a means of legal remedy
for the copyright proprietor which can be enforced by state as well as
by federal courts, resting either upon statutes outside the copyright
law, or on the general principles of equity. This is the application of
the doctrine of "unfair competition" especially in cases involving
"fraud" or fraudulent representation, direct or implied, leading the
purchaser to buy something other than what he supposes he is buying.
Thus if a publisher prints and binds a book with a title and in a style
that leads a purchaser to suppose that it is another book which he is
buying, the publisher of the other book has the right to obtain
equitable relief by an injunction from the transgressor on the ground of
unfair competition without any reference to copyright law, although this
doctrine is more applied in the case of patents, trade-marks and
copyrights than perhaps any other field.

{Sidenote: The doctrine of deceptive intent}

There is also evident a growing tendency on the part of the courts to
protect the public from possible deception especially if done with
fraudulent intent, where some distinctive name or symbol or form
associated with some line of product is used for another line of product
of different origin and character, though there may be here no direct
competition; but this comparatively new doctrine is more likely to be
used in regard to trade-mark articles than in respect to literary and
like property. It might, however, apply in a case where a well-known
publishing house had published, for instance, a popular series of school
books as Smith's Arithmetical Readers and another firm containing the
same name had started to publish a Smith's Algebraic Readers--but the
application would be extremely doubtful.

{Sidenote: The "Chatterbox" cases}

In the Chatterbox cases, 1884-1887, previously referred to, the final
decision of Judge Shipman emphasized the view that the use of the title
"Chatterbox" on a similar publication was misleading to the public, thus
bringing both trade-mark law and common law protection to the rescue
against unfair competition.

{Sidenote: Encyclopædia Britannica cases}

In the series of Encyclopædia Britannica cases, 1890-1904, the English
publishers Black or their American representatives Scribner sought to
protect in this country the English edition, or an American authorized
edition, under the copyright law previous to 1891, copyrighted articles
by Americans being included, and under common law because of the alleged
fraudulent misuse of the name to mislead the public. In 1893, in Black
_v._ Allen, Judge Townsend held that the use of copyrighted material in
a non-copyright work did not vitiate the copyright, that the American
author was entitled to secure and protect copyright even though the
right to use was assigned to an English house which could not directly
secure copyright, and that the fact of discrepancy in the title of the
copyrighted articles as registered for copyright on separate publication
and deposit and in the cyclopædia, did not endanger the copyright. In
1904, in Encyclopædia Britannica Co. _v._ Tribune Association, Judge
Lacombe in the U. S. Circuit Court enjoined condensations of the
copyrighted American articles. But in Black _v._ Ehrich and other cases,
the complainants were not successful in obtaining an injunction against
the use of the title Encyclopædia Britannica on reprints of
non-copyright material which did not mislead the public.

{Sidenote: Webster Dictionary cases}

In the Webster Dictionary cases in 1890-1909, a long litigation between
the Merriams, as authorized publishers of Webster, and Ogilvie and other
defendants, the courts held that the use of the name Webster or the
title Webster's Dictionary could not be restrained when used in
connection with a reprint of the original Webster Dictionary, then out
of copyright, or otherwise in a manner not likely to mislead the public;
but injunctions were granted and sustained against the use of these
names on dictionaries issued in form so like the Merriam editions as to
deceive the public, or in connection with misleading advertisements or
circulars.

{Sidenote: "Old sleuth" cases}

In 1888-1890 George Munro, publisher of the "Old sleuth" detective
series, sought in actions against several defendants to protect the use
of the name "Sleuth" and was upheld in the N. Y. Supreme Court in
separate decisions by Judges Andrews, O'Brien, and Patterson, while in
one of the cases Judge Ingraham held that "sleuth" was a dictionary word
and could not be protected; in 1889 the N. Y. Court of Appeals through
Chief Judge Parker decided that the name "Sleuth" was protectable, and
in 1890 Judge Macomber of the N. Y. Supreme Court held that "Sleuth" was
properly a subject of trade-mark. But in 1890 also, Judge Shipman in the
U. S. District Court dismissed the complaint in another Munro case, as
to an illustration picturing "Old Sleuth," on the ground that though of
the same subject it was not of the same character. These cases
illustrate the difficulty of decisions in this borderland of equity.

{Sidenote: Other title decisions}

In 1894 Judge Green, in the U. S. Circuit Court in New Jersey, in Social
Register Association _v._ Howard, protected on grounds of equity the
title "Social register" as descriptive of a social directory covering
Orange, N. J., and enjoined the use of "Howard's Social register" as
unfair competition. In 1887 the Harper house, as publishers of the
_Franklin Square Library_, obtained from the U. S. Circuit Court,
through Judge Waite, an injunction against the Franklin Square Library
Company for violation of their trade-mark rights in the name.

{Sidenote: Rebound copies}

Where the American Book Co. brought suit against Doan & Hanson, who had
restored and rebound used copies of school books, the U. S. Circuit
Court of Appeals held in 1901 that there was no violation of law, but
required notice that the books were second-hand copies by conspicuous
stamp on the cover. In 1891 the Pennsylvania Supreme Court, in Dodd _v._
Smith, declined to grant Dodd, Mead & Co. an injunction against
rebinders who had purchased from them sheets of a fifty-cent
paper-covered edition of a novel by E. P. Roe and bound these in cloth
to sell at sixty cents in competition with the plaintiff's $1.50 cloth
edition.

{Sidenote: The Kipling case}

In 1899 G. P. Putnam's Sons purchased from Kipling's authorized
publishers sheets of twelve volumes, added three volumes of
non-copyright or otherwise authorized material and published the fifteen
volumes, "Brushwood edition," of Kipling's works, with the design of an
elephant's head on the binding. Kipling sought an injunction for
infringement of copyright, use of trade-mark and unfair competition with
the "Outward bound edition" of his works, which also bore an elephant's
head. In 1903 the U. S. Circuit Court of Appeals, through Judge Coxe,
affirmed a decision holding as "a well-recognized principle of law" that
"the defendants, having purchased unbound copyrighted volumes, were at
liberty, so far as the copyright statute is concerned, to bind and
resell them"; that the elephant's head, not being a registered
trade-mark, could not be protected as a trade-mark; and that there was
no similarity of editions constituting unfair competition. But in 1907,
in Dutton _v._ Cupples & Leon, the plaintiffs obtained damages for a
series of books closely imitating the get-up of their "Gem" or "Dainty"
series. Passing off, however, cannot be made ground of action when
material protectable by copyright has not been copyrighted, as was held
in 1908, in Bamforth _v._ Douglas Post Card Co., by Judge McPherson in
the U. S. Circuit Court.

{Sidenote: Burlesqued title}

The suit to enjoin the use of a reversed or burlesque title, when the
_Boston Herald_ printed, under the title of "Letters of a son to his
self-made father," a skit on Lorimer's "Letters of a self-made merchant
to his son," was denied by Judge Morton in the Massachusetts Supreme
Court in 1903 as involving no deception.

{Sidenote: The Drummond case}

In 1894 Henry Drummond, a British subject, obtained from Judge Dallas,
in the U. S. Circuit Court, an injunction restraining Henry Altemus from
publishing what purported to be exact reports of twelve lectures, of
which eight only had been imperfectly reported in the _British Weekly_,
on the ground that the author had a common law right to restrain the
publication "of any literary matter as the plaintiff's, which was not
actually his creation, and to prevent fraud."

{Sidenote: The new British code}

The new British measure comprehensively defines infringement as the
doing without consent of the owner of the copyright of "anything the
sole right to do which is by this act conferred on the owner of the
copyright," but specifically excepts (1) fair dealing for private study,
research, criticism, review or newspaper summary; (2) use by an artist
of sketches, etc., made for a work of which he has sold the copyright,
provided he does not repeat or imitate that work; (3) graphic
reproduction of objects, or photographing of paintings, etc., in a
public place; (4) limited extracts for use in school books; (5) report
of lectures unless prohibited by placard; (6) reading or recitation of
reasonable extracts.



XV

REMEDIES AND PROCEDURE


{Sidenote: Protection and procedure}

It was for the protection of copyrights that the statute of Anne was
passed and that statutory law thus began to replace English common
law--a gain to authors sadly offset by its losses. But it was
undoubtedly true that without statutory provision the proprietor of
literary and similar property could not obtain the protection necessary
for the enforcement of his rights. The new American code is
comprehensive, detailed and specific in its legal provisions for
protection and procedure, and in respect to punishment far beyond any
copyright legislation on the statute books of any other nation.

{Sidenote: Injunction}

The first protection given by the statute is the injunction usual in
equity proceedings, following the precedent of early legislation.

{Sidenote: Damages}

Under previous American law, damages were levied primarily on infringing
copies found in possession of the infringer or his agents, with the
unfortunate result that when an infringer was successful in selling his
edition, few, if any, copies were found on which to levy damages. The
new code thoroughly corrects this defect by providing for specified
damages on infringing copies "made or sold by or found in the possession
of the infringer or his agents or employees." The plaintiff is entitled
to damages and all profits and is required only to prove sales, while
the defendant is required to prove the elements of cost. The
damages--assessed as such and not as penalties so as to free copyright
litigation from the restrictions of penal proceedings--are stated as one
dollar for each infringing copy, except copies of a painting, statue or
sculpture on which they are ten dollars per copy; fifty dollars for each
infringing delivery of an oral work; one hundred dollars for the first
and fifty dollars for each subsequent infringing performance of a
dramatic, dramatico-musical, choral or orchestral work; and ten dollars
for each infringing performance of any other musical work. These damages
shall not be less than $250 or more than $5000 in any one case, with the
exception that for a newspaper reproduction of a photograph the minimum
shall be fifty dollars and the maximum two hundred dollars, a concession
insisted upon by newspaper proprietors.

{Sidenote: One suit sufficing}

Injunction, damages and profits, and delivery of infringing copies or
means of production, are covered in the single suit to protect the
copyright.

{Sidenote: Deposit of infringing articles}

During the pendency of an action the defendant may be required to
deposit all articles alleged to infringe copyright, making oath that he
has deposited all such, under regulations for his protection prescribed,
as the law directs, by the Supreme Court, which regulations are given in
full in the appendix of this volume; and when such articles are adjudged
to be infringements, he must deliver up for destruction not only such
infringing copies or devices, but also all plates, molds, matrices or
other means for making such infringing copies as the court may order,
making oath that he has delivered up all such.

The text covering these provisions, with the exception of subsection
(e), referring to mechanical musical reproductions, given in the chapter
on that subject, is as follows:

"(Sec. 25.) That if any person shall infringe the copyright in any work
protected under the copyright laws of the United States such person
shall be liable:

{Sidenote: Remedies specified}

"(a) To an injunction restraining such infringement;

"(b) To pay to the copyright proprietor such damages as the copyright
proprietor may have suffered due to the infringement, as well as all the
profits which the infringer shall have made from such infringement, and
in proving profits the plaintiff shall be required to prove sales only
and the defendant shall be required to prove every element of cost which
he claims, or in lieu of actual damages and profits such damages as to
the court shall appear to be just, and in assessing such damages the
court may, in its discretion, allow the amounts as hereinafter stated,
but in the case of a newspaper reproduction of a copyrighted photograph
such damages shall not exceed the sum of two hundred dollars nor be less
than the sum of fifty dollars, and such damages shall in no other case
exceed the sum of five thousand dollars nor be less than the sum of two
hundred and fifty dollars, and shall not be regarded as a penalty:

"First. In the case of a painting, statue, or sculpture, ten dollars for
every infringing copy made or sold by or found in the possession of the
infringer or his agents or employees;

"Second. In the case of any work enumerated in section five of this Act,
except a painting, statue, or sculpture, one dollar for every infringing
copy made or sold by or found in the possession of the infringer or his
agents or employees;

"Third. In the case of a lecture, sermon, or address, fifty dollars for
every infringing delivery;

"Fourth. In the case of dramatic or dramatico-musical or a choral or
orchestral composition, one hundred dollars for the first and fifty
dollars for every subsequent infringing performance; in the case of
other musical compositions, ten dollars for every infringing
performance;

{Sidenote: Impounding}

"(c) To deliver up on oath, to be impounded during the pendency of the
action, upon such terms and conditions as the court may prescribe, all
articles alleged to infringe a copyright;

"(d) To deliver up on oath for destruction all the infringing copies or
devices, as well as all plates, molds, matrices, or other means for
making such infringing copies as the court may order;

{Sidenote: Supreme Court rules}

"Rules and regulations for practice and procedure under this section
shall be prescribed by the Supreme Court of the United States," for
which see appendix.

{Sidenote: Court jurisdiction}

The Circuit Court, or District or other courts having circuit
jurisdiction, of the United States, have original jurisdiction "of all
suits at law or in equity arising under the patent or copyright laws of
the United States" with appeal or writ of error to the Supreme Court of
the United States. Copyright cases are brought in the first instance
before a single judge sitting in Circuit Court or District Court, and
thence are appealed to the Circuit Court of Appeals consisting of three
or more circuit judges, and thence again to the United States Supreme
Court, the final authority. These federal courts have sole jurisdiction
under the copyright law as such; but copyright cases are often
adjudicated in State courts on questions arising under the law of
contracts or other statute or common law, regard being always given to
the decisions of the federal courts as to copyright questions proper
which may be involved. In other words, the State courts do not pass upon
copyright law, but may apply, within the respective states, the
copyright decisions of federal courts. Thus in Hoyt _v._ Bates, in 1897,
Judge Putnam in the U. S. Circuit Court in Massachusetts remanded the
case back to the State courts because the question was not under the
copyright law as such, but regarding the ownership of copyright
property. In this case the author of a play "A black sheep," containing
a song "Sweet Daisy Stokes," licensed the defendant to print the song.
The defendant copyrighted the song and the plaintiff sued to compel him
to assign his copyright. The case illustrates the respective
jurisdictions of federal and State courts in copyright matters.

{Sidenote: Limitation}

The United States courts have authority to enter the decrees necessary
to enforce the remedies provided by the law. Important provisions of the
new code provide that civil action in copyright cases may be brought "in
the district of which the defendant or his agent is an inhabitant or in
which he may be found"--thus preventing avoidance by the defendant
possible under earlier law; and also that any injunction granted in any
one district may be operative throughout the United States--a provision
adopted into the law from recent legislation intended to prevent the
evasion of injunctions, particularly by "fly by night" dramatic
companies passing from one state or court jurisdiction into another, but
usefully applicable also throughout the whole range of copyright
infringements. Criminal proceedings under the copyright act may not be
brought after three years from the commission of the offense.

Under the former laws the District courts also had certain--or
uncertain--jurisdiction. The distinction between the District courts and
the Circuit courts of the United States, both of which are courts of
first instance, has been so complicated and uncertain as to be
practically impossible of statement--a situation which has led to a
measure for the abolition of the distinction and the provision of a
single court in each federal district having original jurisdiction in
the first instance, from which appeal will go to the Circuit Court of
Appeals and thence to the U. S. Supreme Court, or in certain cases
direct to the Supreme Court.

{Sidenote: Text of procedure provisions}

The text of these provisions is as follows:

"(Sec. 26.) That any court given jurisdiction under section thirty-four
of this Act may proceed in any action, suit, or proceeding instituted
for violation of any provision hereof to enter a judgment or decree
enforcing the remedies herein provided.

{Sidenote: Proceedings united in one action}

"(Sec. 27.) That the proceedings for an injunction, damages, and
profits, and those for the seizure of infringing copies, plates, molds,
matrices, and so forth, aforementioned, may be united in one action."

{Sidenote: Jurisdiction in copyright cases}

"(Sec. 34.) That all actions, suits, or proceedings arising under the
copyright laws of the United States shall be originally cognizable by
the circuit courts of the United States, the district court of any
Territory, the supreme court of the District of Columbia, the district
courts of Alaska, Hawaii, and Porto Rico, and the courts of first
instance of the Philippine Islands.

"(Sec. 35.) That civil actions, suits, or proceedings arising under this
Act may be instituted in the district of which the defendant or his
agent is an inhabitant, or in which he may be found.

{Sidenote: Injunction provisions}

"(Sec. 36.) That any such court or judge thereof shall have power, upon
bill in equity filed by any party aggrieved, to grant injunctions to
prevent and restrain the violation of any right secured by said laws,
according to the course and principles of courts of equity, on such
terms as said court or judge may deem reasonable. Any injunction that
may be granted restraining and enjoining the doing of anything forbidden
by this Act may be served on the parties against whom such injunction
may be granted anywhere in the United States, and shall be operative
throughout the United States and be enforceable by proceedings in
contempt or otherwise by any other court or judge possessing
jurisdiction of the defendants.

"(Sec. 37.) That the clerk of the court, or judge granting the
injunction, shall, when required so to do by the court hearing the
application to enforce said injunction, transmit without delay to said
court a certified copy of all the papers in said cause that are on file
in his office.

{Sidenote: Appeal}

"(Sec. 38.) That the orders, judgments, or decrees of any court
mentioned in section thirty-four of this Act arising under the copyright
laws of the United States may be reviewed on appeal or writ of error in
the manner and to the extent now provided by law for the review of cases
determined in said courts, respectively.

{Sidenote: No criminal proceedings after three years}

"(Sec. 39.) That no criminal proceeding shall be maintained under the
provisions of this Act unless the same is commenced within three years
after the cause of action arose."

{Sidenote: Strict compliance requisite}

The copyright statutes are construed strictly, by the letter of the law,
in respect to procedure as well as to other features. This is especially
the case in respect to forfeiture and penalties, as where, in Falk _v._
Heffron, in 1893, 2400 copies of a copyright portrait of Lillian Russell
had been lithographed, twenty-one on a sheet. Judge Wheeler in the U. S.
Circuit Court in New York held with the jury that only one dollar per
sheet could be recovered as penalty, because the law specified "sheets."
In McDonald _v._ Hearst, in 1899, in the U. S. Circuit Court in
California, Judge DeHaven held that the proprietor of the San Francisco
_Examiner_ could not be held liable for copyright penalties because an
employer could not be held to penal responsibility for the act of his
agent. In a suit to obtain damages based on forfeiture, in Wheeler _v._
Cobbey, in 1895, Judge Shiras in the U. S. Circuit Court in Nebraska
sustained a demurrer on the ground that the damages asked for depended
on forfeiture and could not be obtained unless the actual forfeiture was
had within the statutory limit of two years. In Morrison _v_. Pettibone,
in 1897, in the U. S. Circuit Court in Illinois, Judge Seaman held that
certain sheets, seized during the process of lithographing, when only
one color had been printed, were not exact copies and therefore could
not be forfeited. In Bennett _v._ Boston _Traveler_ Co., in 1900, the
Circuit Court of Appeals, through Judge Colt, refused relief because the
plaintiff had alleged infringement of a cartoon published in the New
York _Herald_, which was not specifically copyrighted, instead of
alleging infringement of the copyrighted newspaper of which it was a
part. An extreme case was that of Child _v._ N. Y. _Times_ Co., in 1901,
where the plaintiff had purchased infringing copies from the defendant,
in which case Judge Hazel in the U. S. Circuit Court in New York held
that as these were not literally "found in possession" of defendant, a
penalty could not be collected. Several of these cases illustrate
escapes from justice which will not be possible under the code of 1909,
which uses broader phraseology. In Walker _v._ Globe Newspaper Co., in
1908, where no copies of a pirated map were found in possession of the
defendants, the U. S. Supreme Court held that outside of statutory
remedies no suit for damages could be maintained.

{Sidenote: Damage not penalty}

On the other hand, in the case of Brady _v._ Daly, which came before the
U. S. Supreme Court in 1899, the defendants, on a question of
jurisdiction, raised the issue that the old law provided for a penalty
and not for damages, in denying which Justice Peckham held that: "The
statute in using the word 'damages' did not mean a forfeiture or
penalty, as it is difficult to prove the exact amount which the
proprietor of a play may suffer by reason of an infringement. It is
probable that Congress intended to provide a remedy so that the
proprietor could recover a certain amount of damages without proof of
what his actual loss had been. In the face of the difficulty of
determining the amount of damages, a minimum sum is provided in any
case, with the possibility of recovering a larger amount on proof of
greater damage. The idea of punishment is not so much suggested as the
desire to provide for compensation to the proprietor." This rule was
applied by Judge Lacombe in Patterson _v_. Ogilvie, in 1902.

{Sidenote: Other procedure decisions}

In the case of Falk _v._ Curtis Pub. Co., which came before the U. S.
Circuit Court in Pennsylvania twice in 1900, some important decisions or
indications as to copyright procedure were given. The defense that under
the copyright act the words "any person" did not include a corporation
was overruled by Judge Dallas on the ground that the general statute
specifically construed the word "person" to extend to partnerships and
corporations. In this case an action to recover penalties and an action
to replevin copies in possession were started independently and
simultaneously, and the Circuit Court of Appeals through Judge
Buffington affirmed the decision that as the penalties under the old act
were restricted to copies "found in possession," the suit for penalties
was premature. In the later case of Rinehart _v._ Smith, also in the
Pennsylvania circuit, it was pointed out that an action for replevin was
not the proper form of suit because in such actions bonds might be given
and the forfeiture of copies thus be barred; and in Hegeman _v._
Springer, the Circuit Court in New York held, in 1901, that a replevin
suit, involving prior demand, was not necessary and that the copyright
statute itself gave authority for an action for seizure without previous
demand, as would be necessary in replevin proceedings. It was held,
however, in the Illinois circuit in an earlier case, that a suit of
replevin will lie to enforce forfeiture under the copyright act. Several
of these perplexities, however, are removed by the code of 1909, which
expressly (sec. 27) authorizes the bringing together of all the remedies
in one action.

{Sidenote: Preventive action}

That there can be no infringement of copyright by acts committed before
the copyright was obtained, was decided in 1900 in the U. S. Circuit
Court in the case of Maloney _v._ Foote, where the two parties were
jointly engaged in preparing directories, and the plaintiff obtained the
copyright and brought suit for infringement for the prior use of
material, the question being of contract and not of copyright. On the
other hand, as far as practicable, "it is the policy of the law to
arrest the pirate before he actually makes off with the plunder," said
Judge Coxe in the U. S. Circuit Court of Appeals, in Gannet _v._ Rupert,
in 1904.

{Sidenote: Party in suit}

In 1903, in Champney _v._ Haag, it was held in the U. S. Circuit Court
in Pennsylvania, that though a copy of a photograph of a copyright
painting was an infringement, it was not the owner of the original
copyright but the owner of the photograph who must sue--but this is
contrary to the English ruling case of Lucas _v._ Williams, and is
probably not good law.

{Sidenote: Suit for injury to reputation}

A curious case arose in England in 1892 as to the rights of an author
after publication and transfer of copyright, in Lee _v._ Gibbings, where
the plaintiff had prepared for the defendant, a publisher, at an agreed
price, an edition with introduction of Lord Herbert's autobiography,
which the defendant reissued in a condensed edition without the
introduction and other matter by the author, though retaining his name.
The author sued to restrain the condensation as an injury to his
reputation, but Justice Kekewich in the Chancery Division held that this
should be a suit for libel and not under copyright, and declined to
enjoin the defendant before the question whether this was actually a
libel was settled.

{Sidenote: Damages in willful case}

In a case of evident bad faith in wholesale copying, the U. S. Circuit
Court in Hartford Printing Co. _v._ Hartford Directory Co. awarded as
damages the gross receipts less estimated cost.

{Sidenote: Penal provisions}

The provisions for collecting damages and profits are supplemented in
case of infringement, willfully and for profit, by penal provisions
which make the offense a misdemeanor punishable by imprisonment not
exceeding one year or fine not less than $100 or more than $1000, or
both, in the discretion of the court, according to the following
provision (sec. 28):

{Sidenote: Penalty for willful infringement}

"That any person who willfully and for profit shall infringe any
copyright secured by this Act, or who shall knowingly and willfully aid
or abet such infringement, shall be deemed guilty of a misdemeanor, and
upon conviction thereof shall be punished by imprisonment for not
exceeding one year or by a fine of not less than one hundred dollars nor
more than one thousand dollars, or both, in the discretion of the
court."

This provision (sec. 28) includes however a proviso exempting from
prevention or punishment the performance of certain musical works for
charitable or educational purposes and not for profit, which proviso is
given in full in the chapter on dramatic and musical copyright.

{Sidenote: Penalty for false notice of copyright}

Provision is also made in the new statute for the punishment by fine,
but not by imprisonment, of any person who with fraudulent intent
affixes a copyright notice or its equivalent on an uncopyrighted work,
or removes or alters the copyright notice in a copyrighted work, the
fine being not less than $100 nor more than $1000; and of any person who
shall knowingly issue, sell or import any article bearing notice of
United States copyright which has not been copyrighted in this country,
the fine in this case being $100, according to these provisions:

"(Sec. 29.) That any person who, with fraudulent intent, shall insert or
impress any notice of copyright required by this Act, or words of the
same purport, in or upon any uncopyrighted article, or with fraudulent
intent shall remove or alter the copyright notice upon any article duly
copyrighted shall be guilty of a misdemeanor, punishable by a fine of
not less than one hundred dollars and not more than one thousand
dollars. Any person who shall knowingly issue or sell any article
bearing a notice of United States copyright which has not been
copyrighted in this country, or who shall knowingly import any article
bearing such notice or words of the same purport, which has not been
copyrighted in this country, shall be liable to a fine of one hundred
dollars."

Further provisions as to importation are given in the chapter on that
subject.

{Sidenote: Allowance of costs}

In addition to injunction, damages and profits, delivery of copies,
etc., the courts may allow costs inclusive of attorney's fees as
provided:

"(Sec. 40.) That in all actions, suits, or proceedings under this Act,
except when brought by or against the United States or any officer
thereof, full costs shall be allowed, and the court may award to the
prevailing party a reasonable attorney's fee as part of the costs."

It seems impracticable and undesirable to attempt in this chapter a
statement of the procedure under former copyright laws in this country,
or under the legal methods in vogue in other countries, for which the
legal authorities on local procedure and practice should be consulted.

{Sidenote: The new British code}

The new British measure provides the usual civil remedies of injunction,
damages, account and costs in the discretion of the court. The author,
or if no author the publisher whose name is indicated on the work, is
_prima facie_ recognized as owner unless the contrary is proved.
Infringing copies or plates become the property of the copyright owner.
If the infringer proves ignorance, only an injunction will hold. In
architectural works, after construction has been commenced, damages and
not an injunction are provided for. Actions must be commenced within
three years. Summary conviction is provided for in the case of any
person knowingly and for profit or trade making, offering, distributing,
exhibiting or importing infringing copies or making or having in
possession infringing plates with penalty of a fine not exceeding fifty
pounds, or in case of a second offense, imprisonment not exceeding two
months, as also destruction or delivery up to owner of the copyright.
The summary provisions of the musical copyright acts of 1902 and 1906
remain unrepealed.

Under previous law there had been two notable cases of criminal
punishment for conspiracy. In 1906, _Re_ Willets against a combination
among cheap music publishers, where the Common Serjeant sentenced the
vendors to nine months' imprisonment, and in 1910, _Re_ Bokenham, where
pirates who had conspired to print surreptitiously obtained copies of
Oscar Wilde's poem "De Profundis," were also sentenced to six months and
lesser periods.



XVI

IMPORTATION OF COPYRIGHTED WORKS


{Sidenote: Copyright and importation}

The right to import a copyrighted book and, conversely, the right to
exclude importation are rights incident to the general "exclusive right"
of an author or copyright proprietor. This is recognized, in terms or
inferentially, in the copyright law of most countries; and the American
copyright code is exceptional and almost without precedent, save that of
the preceding American law of 1891, in specifically permitting the
importation of copyrighted books in stated cases, without the consent or
authority of the copyright proprietor.

{Sidenote: Fundamental right of exclusion}

As Senator O. H. Platt in the copyright debate of 1891 said: "The
fundamental idea of a copyright is exclusive right to vend, and the
prohibition against importation from a foreign nation is necessary to
the enjoyment of that right. The privilege of controlling the market is
indeed essential." The copyright laws of foreign countries, and our own
copyright legislation previous to 1891, carefully safeguard this right.
When an author cannot assure to an American publisher the American
market he cannot get from that publisher the price he would otherwise
secure. In the "international copyright amendment" of 1891, Congress
accompanied the manufacturing clause, which prohibited the importation
of foreign copies even with the consent of the author, by a proviso
permitting certain importations even without the consent of the
author--on the homoeopathic principle of off-setting one restriction
upon authors' rights by another restriction upon authors' rights.

{Sidenote: General prohibitions}

{Sidenote: Exceptions permitted}

In general the law prohibits absolutely the importation of "piratical
copies" or of works bearing a false notice of United States copyright;
it also prohibits, even though with consent of the author and the
copyright proprietor, the importation in the case of works subject to
the manufacturing clause, of any copies not manufactured in this
country--but this prohibition does not apply to books in raised
characters for use of the blind; to foreign-made periodicals containing
authorized copyright matter; to authorized copies of a work in a foreign
language of which only an English translation has been copyrighted here;
or to authorized copies published abroad when imported under specified
exceptional circumstances. These exceptions permit the importation of
authorized copies for individual use and not for sale, not more than one
copy at a time (excepting a foreign reprint of a book by an American
author); or by or for the United States; or by or for stated educational
institutions, including libraries, not more than one copy at one time;
or when parts of collections or libraries purchased and imported _en
bloc_, or of personal baggage. Books imported under these exceptions
cannot be adduced in defense of infringements, as the law specifically
provides, _e.g._, as when such a book contains no proper United States
copyright notice. Copies unlawfully imported may be seized and forfeited
like other contraband importations under regulations of the United
States Treasury, but it is provided that importations through the mails
or otherwise may be returned to the country from which the importation
is made on petition to the Secretary of the Treasury when there is no
evidence of negligence or fraud. The Secretary of the Treasury and the
Postmaster-General are jointly required to make regulations against
unlawful importation through the mails.

These provisions, it may be noted, are a singular mixture, almost
without precedent, of acceptance and denial of the "exclusive right" of
the author or copyright proprietor.

{Sidenote: Text provisions}

In respect to the importation of books in relation with copyright, the
provisions of the American code as to prohibition and limited permission
are specific and detailed, as follows:

{Sidenote: Prohibition of piratical copies}

"(Sec. 30.) That the importation into the United States of any article
bearing a false notice of copyright when there is no existing copyright
thereon in the United States, or of any piratical copies of any work
copyrighted in the United States, is prohibited.

{Sidenote: Permitted importations}

"(Sec. 31.) That during the existence of the American copyright in any
book the importation into the United States of any piratical copies
thereof or of any copies thereof (although authorized by the author or
proprietor) which have not been produced in accordance with the
manufacturing provisions specified in section fifteen of this Act, or
any plates of the same not made from type set within the limits of the
United States, or any copies thereof produced by lithographic or
photo-engraving process not performed within the limits of the United
States, in accordance with the provisions of section fifteen of this
Act, shall be, and is hereby, prohibited: _Provided, however_, That,
except as regards piratical copies, such prohibition shall not apply:

"(a) To works in raised characters for the use of the blind;

"(b) To a foreign newspaper or magazine, although containing matter
copyrighted in the United States printed or reprinted by authority of
the copyright proprietor, unless such newspaper or magazine contains
also copyright matter printed or reprinted without such authorization;

"(c) To the authorized edition of a book in a foreign language or
languages of which only a translation into English has been copyrighted
in this country;

"(d) To any book published abroad with the authorization of the author
or copyright proprietor when imported under the circumstances stated in
one of the four subdivisions following, that is to say:

"First. When imported, not more than one copy at one time, for
individual use and not for sale; but such privilege of importation shall
not extend to a foreign reprint of a book by an American author
copyrighted in the United States;

"Second. When imported by the authority or for the use of the United
States;

{Sidenote: Library importations}

"Third. When imported, for use and not for sale, not more than one copy
of any such book in any one invoice, in good faith, by or for any
society or institution incorporated for educational, literary,
philosophical, scientific, or religious purposes, or for the
encouragement of the fine arts, or for any college, academy, school, or
seminary of learning, or for any State, school, college, university, or
free public library in the United States;

"Fourth. When such books form parts of libraries or collections
purchased en bloc for the use of societies, institutions, or libraries
designated in the foregoing paragraph, or form parts of the libraries or
personal baggage belonging to persons or families arriving from foreign
countries and are not intended for sale: _Provided_, That copies
imported as above may not lawfully be used in any way to violate the
rights of the proprietor of the American copyright or annul or limit the
copyright protection secured by this Act, and such unlawful use shall be
deemed an infringement of copyright.

{Sidenote: Seizure}

{Sidenote: Return of importations}

"(Sec. 32.) That any and all articles prohibited importation by this Act
which are brought into the United States from any foreign country
(except in the mails) shall be seized and forfeited by like proceedings
as those provided by law for the seizure and condemnation of property
imported into the United States in violation of the customs revenue
laws. Such articles when forfeited shall be destroyed in such manner as
the Secretary of the Treasury or the court, as the case may be, shall
direct: _Provided, however_, That all copies of authorized editions of
copyright books imported in the mails or otherwise in violation of the
provisions of this Act may be exported and returned to the country of
export whenever it is shown to the satisfaction of the Secretary of the
Treasury, in a written application, that such importation does not
involve willful negligence or fraud.

{Sidenote: Rules against unlawful importation}

"(Sec. 33.) That the Secretary of the Treasury and the
Postmaster-General are hereby empowered and required to make and enforce
such joint rules and regulations as shall prevent the importation into
the United States in the mails of articles prohibited importation by
this Act, and may require notice to be given to the Treasury Department
or Post Office Department, as the case may be, by copyright proprietors
or injured parties, of the actual or contemplated importation of
articles prohibited importation by this Act, and which infringe the
rights of such copyright proprietors or injured parties."

Customs regulations as to importation of copyright articles and joint
customs and postal regulations as to such importation through the mails,
were issued under the law of 1909 under date of July 17, 1911, and are
given in the appendix. As the copyright law forbids importation of
copyright books not manufactured in this country, even with consent of
the copyright proprietor, the customs regulations provide that copies
imported with the copyright proprietor's assent shall be seized and
destroyed by the government, while copies imported without the copyright
proprietor's consent, being forfeited under the law to such proprietor,
must be held by the customs authorities pending suit for forfeiture by
the copyright owner or his abandonment of his right to such copies.
Duties collected on books thus unlawfully imported are not refunded.

{Sidenote: Supersedure of previous provisions}

In relation especially to questions of importation, and in general, it
is of first importance to note that the present code superseded by
repeal, from July 1, 1909, all conflicting provisions, which
practically means all previous copyright legislation, and that except as
to infringement cases actionable at that date, the present code is the
only copyright law.

The provision to this effect is (sec. 63): "That all laws or parts of
laws in conflict with the provisions of this Act are hereby repealed,
but nothing in this Act shall affect causes of action for infringement
of copyright heretofore committed now pending in courts of the United
States, or which may hereafter be instituted; but such causes shall be
prosecuted to a conclusion in the manner heretofore provided by law."

{Sidenote: Manufacturing clause affects earlier copyrights}

This principle as construed by the Treasury Department (Treas. dec. no.
30316) especially affects copies whose _status_ has been changed by the
new form of the manufacturing proviso (sec. 15). A modification adds the
condition that books must be printed from plates made from type set
within the United States and printed and bound in this country. The
Treasury Department has held in the case of an American edition of the
"Key of Heaven" copyrighted under the law of 1891, by Benziger Brothers,
of which sheets were sent abroad for binding, that the edition as bound
abroad cannot be re-imported into the United States, although the sheets
were manufactured here under the provisions of the law of 1891, previous
to July 1, 1909. These books were accordingly denied importation and had
to be returned to the country whence they were exported as bound. The
opinion of Attorney-General Wickersham of November 17, 1909, on which
the Treasury ruling was based, says:

"This language [of sec. 31] clearly embraces every American copyright in
a book, regardless of whether that copyright was obtained under the
copyright laws embodied in the Revised Statutes, or the act of 1891, or
the copyright act of 1909. If the statute were otherwise, it would have
produced the anomalous condition that books copyrighted prior to March
3, 1891, would not be prohibited from importation by any manufacturing
provision; that books copyrighted after March 3, 1891, and prior to July
1, 1909, the date upon which the act of March 4, 1909, became effective,
would be prohibited unless printed from type set in the United States or
from plates made from type set in the United States, while books
copyrighted after July 1, 1909, would be prohibited if not printed from
type set in the United States or from plates made from type set therein,
and the printing and _binding_ both performed within the limits of the
United States."

{Sidenote: Importation of foreign texts}

Where a work in a foreign language is copyrighted in the United States,
it was held by the Secretary of the Treasury (Treas. dec. no. 22751) in
1901, on advice of the Attorney-General, under the act of 1891, in the
case of Rostand's "L'Aiglon," that the original French edition must be
denied importation under the prohibition feature of the manufacturing
clause; but, as under the new code of 1909, "the original text of a work
of foreign origin in a language other than English," is excepted from
the manufacturing clause, it follows that such original text cannot be
denied importation on copyright grounds, though importation might be
restrained as a matter of equity by an assignee who had bought for the
American market the right to publish here. In the case, however, of
Liddel and Scott's Greek-English Lexicon, of which an American edition
was copyrighted previous to the law of 1891, on a question raised by the
American Book Co., the Secretary of the Treasury held in 1901 (Treas.
dec. no. 22781) that the English edition could not be denied
importation, as the law previous to 1891 did not contain the prohibition
incident to the manufacturing clause. The Attorney-General in this case
considered that while the clause against importation, being remedial,
might affect prior copyright, yet as it particularly applied to books
"so copyrighted" as not to be imported during the existence of "such
copyright," it should be inferred that only books copyrighted under that
act should be denied importation--the law in general being prospective
in its effect. These two earlier opinions were taken into consideration
in the opinion in 1909 by Attorney-General Wickersham, who held that the
language of the new code did not warrant the same construction.

{Sidenote: Printing within country}

Under the law of 1891, the Secretary of the Treasury held in 1903
(Treas. dec. no. 24742) that books printed abroad from type set or
plates made within the United States could not be prohibited importation
under the manufacturing clause; but the clause has been so amended in
the code of 1909 that printing in this country from type set within the
United States or from plates made within the country from type thus set,
is required as a condition of copyright, and copyright does not hold if
any of these three conditions be neglected. It follows that in the case
of books so copyrighted and manufactured, any other edition must be
prohibited importation.

{Sidenote: Innocent importation}

An English decision holds that an importer is not innocent because he
does not know that an importation includes copyright matter; and the
wording of our law implies the same, though an American decision held
that a partner or employer is not chargeable with statute penalties for
acts done without his knowledge by a partner or agent.

{Sidenote: Books not claiming copyright}

An indirect and significant effect of the manufacturing proviso, in the
nature of a "boomerang" to American industries, is to prevent the
copyrighting of works which might otherwise be partly manufactured in
America. Thus the American versions of the Book of Common Prayer and of
Church Hymnals no longer seek American copyright, because the thin paper
editions, as on "Oxford paper," are necessarily printed abroad and could
not be imported if there were copyright on other editions which might be
made in America. Baedeker's "United States," though dealing exclusively
with and chiefly sold in this country, is not copyrighted, being
protected rather by the cost of reproducing its German-made maps and
text, and by its repute as a guide book and characteristic form, which
might under the doctrine of "fair use" give its American publishers some
common law protection against imitators.

{Sidenote: Periodicals may be imported}

{Sidenote: Composite books not admitted}

The code of 1909 permits the importation of periodicals containing
copyright matter authorized by the copyright proprietor, though not
manufactured in the United States, but this permissive exception does
not extend to composite books; and under the law of 1891 the Treasury
Department held that in the case of a book of poems, some of which were
copyrighted in the United States, the book could not be imported unless
the parts containing copyrighted poems had been printed from type set
within the United States. Under this ruling, applied to the present law,
foreign-made copies of books containing American copyrighted poems or
other articles, must be denied importation, because these copyrighted
portions were not type-set, printed and bound in this country. It is
possible, however, that under the rule "_de minimis non curat lex_," a
court might not justify the prohibition of books incidentally containing
in small proportion poems, extracts or other negligible items of
American copyright. Thus if an English cyclopædia contained copyrighted
contributions by American authors, such cyclopædia would be denied
admission unless such contributions might be adjudged a negligible
proportion of the work.

{Sidenote: Rebinding abroad}

The prohibition of importation under the manufacturing proviso of
copyrighted books not bound in this country, has been construed by the
Attorney-General, in an opinion of March 1, 1910 (given in Treas. dec.
no. 30414), to refer to original bindings and not to rebindings.
"Manifestly a book is produced within the meaning of section 31 when it
is printed and bound; and the binding required to be done in the United
States is the original binding, the one which enters into the original
production of the book. When the manufacture of the book is thus
completed it is entitled to all the protection offered by the copyright
laws, and it may be exported and thereafter imported at the pleasure of
the owner. There is, furthermore, nothing in the act to indicate any
intention that a book may be deprived of this protection or right of
importation when it has once been acquired. If it shall become necessary
or proper that the book be rebound it is not thereby made a new book,
but remains the same book, the one that was printed and originally bound
in the United States as required by the statute."

{Sidenote: Importation of non-copyright translation}

A curious question as to the prohibition of importation arose in
connection with a Swedish translation of the "purity" books of the "Self
and sex" series, by Dr. Sylvanus Stall, of Philadelphia, author and
publisher of this series. The original works in this series are by an
American author written and printed in English and manufactured and
copyrighted in America; and there are translations into twenty or more
languages authorized by the author but not copyrighted in the United
States. The copyright proprietor made an importation of the Swedish
translation without question, but the second importation was stopped by
the customs authorities at Philadelphia on the ground that the Swedish
translation was a copy of the American copyrighted work and must
therefore be denied admission because not manufactured in America. On
appeal, the Treasury Department, June 23, 1910, overruled the local
authorities and admitted the translation made in Sweden, and bearing no
copyright notice, as a work "of foreign origin in a language other than
English."

{Sidenote: Books dutiable}

Copyright protection and tariff "protection" are often spoken of as
related with each other, chiefly because in this country the importation
of books for libraries is, to a limited extent, free from tariff duties
as well as from copyright restrictions. There is no real relation
between them, but the sections of the American tariff of 1910 dealing
with books and works of art may be cited for the convenience of
importers:

"(416) Books of all kinds, bound or unbound, including blank books,
slate books and pamphlets, engravings, photographs, etchings, maps,
charts, music in books or sheets, and printed matter, all the foregoing
wholly or in chief value of paper, and not specially provided for in
this section, twenty-five per centum ad valorem; views of any landscape,
scene, building, place, or locality in the United States on cardboard or
paper, not thinner than eight one-thousandths of one inch, by whatever
process printed or produced, including those wholly or in part produced
by either lithographic or photogelatin process (except show cards),
occupying thirty-five square inches or less of surface per view, bound
or unbound, or in any other form, fifteen cents per pound and
twenty-five per centum ad valorem; thinner than eight one-thousandths of
one inch, two dollars per thousand: Provided, That the rate or rates of
duty provided in the tariff Act approved July twenty-fourth, eighteen
hundred and ninety-seven, shall remain in force until October first,
nineteen hundred and nine, on all views of any landscape, scene,
building, place, or locality, provided for in this paragraph, which
shall have, prior to July first, nineteen hundred and nine, been ordered
or contracted to be delivered to bona fide purchasers in the United
States, and the Secretary of the Treasury shall make proper regulations
for the enforcement of this provision."

{Sidenote: Books on free list}

The following are included in the "free list" and are therefore free
from any duties:

"(516) Books, engravings, photographs, etchings, bound or unbound, maps
and charts imported by authority or for the use of the United States or
for the use of the Library of Congress.

"(517) Books, maps, music, engravings, photographs, etchings, bound or
unbound, and charts, which shall have been printed more than twenty
years at the date of importation, and all hydrographic charts and
publications issued for their subscribers or exchanges by scientific and
literary associations or academies, or publications of individuals for
gratuitous private circulation, and public documents issued by foreign
governments.

"(518) Books and pamphlets printed chiefly in languages other than
English; also books and music, in raised print, used exclusively by the
blind.

"(519) Books, maps, music, photographs, etchings, lithographic prints,
and charts, specially imported, not more than two copies in any one
invoice, in good faith, for the use and by order of any society or
institution incorporated or established solely for religious,
philosophical, educational, scientific, or literary purposes, or for the
encouragement of the fine arts, or the use and by order of any college,
academy, school, or seminary of learning in the United States, or any
state or public library, and not for sale, subject to such regulations
as the Secretary of the Treasury shall prescribe.

"(520) Books, libraries, usual and reasonable furniture, and similar
household effects of persons or families from foreign countries, all the
foregoing if actually used abroad by them not less than one year, and
not intended for any other person or persons, nor for sale."

{Sidenote: Library free importation}

The provisions as to importation for libraries are made unnecessarily
onerous by Treasury regulations intended to insure the identification of
the actual copies so imported. In practice such copies are usually
imported by library agents acting for the library and not only must
these agents make oaths and present evidence of authorization from the
library authorities, but the librarian must certify to the receipt of
the individual copy, before it can be technically cleared from the
custom house through which it is imported, and the importer relieved
from further liability. Blank forms for these purposes are prescribed
and provided by the Treasury Department.

{Sidenote: Copyrights and the free list}

The question whether copyrighted works could be imported because they
were included under the free list of the tariff came before the Treasury
Department in 1901. With respect to copyrighted music, the
Attorney-General considered the two questions whether the copyright law
prohibits the importation of copyright music and whether the free list
in the tariff constitutes an exception to the copyright law. He held as
to the latter that the tariff is to prescribe certain duties on
importations; it is not designed to authorize importation. It simply
provides when and under what circumstances certain articles are exempt
from duty. Accordingly copyrighted musical compositions are not taken
out of the effect of the copyright law. The Secretary of the Treasury
ruled (Treas. dec. no. 23225), in accordance with this advice, that
copyrighted music was prohibited importation,--but this refers to
importation without consent of the copyright proprietor.

{Sidenote: The duty on books}

Although not of copyright bearing, the significance in respect to
importations of books of the newly added phrase "wholly or in chief
value of paper" in the tariff act of 1909, which otherwise continued the
25 per cent duty on books, may here be mentioned, as of importance to
importers. It was included in the Payne tariff, apparently at the
instance of the bookbinding interests, and was at first construed by the
local customs authorities at New York to make books bound in leather
subject to the 40 per cent duty on leather, and books bound in silk
subject to the 50 per cent duty on silk, as the component parts of chief
value. The Secretary of the Treasury has, however, overruled this view
and admitted books thus bound under the 25 per cent duty on the ground
that "the limitation placed upon the paragraph by the addition of the
words not found in the previous law was intended to exclude from that
rate, books bound in such fancy or costly bindings as to be imported not
on account of their intrinsic literary merit or their value as books."
The Board of General Appraisers has since, however, rendered a decision
supporting the local appraisers.

{Sidenote: British prohibition of importation}

In Great Britain the copyright act of 1842 (sec. 17) provided that any
printed books, copyright in the United Kingdom, imported "for sale or
hire" as reprinted out of the British dominions otherwise than by "the
proprietor of the copyright or some person authorized by him" should be
forfeited, seized and destroyed by any customs or excise officer, and
the Customs act of 1843, setting forth that "great abuse had prevailed
with respect to introduction for private use," prohibited importation
for use as well as for sale or hire. The international copyright act of
1844 (sec. 10) excepted importations from the country "in which such
books were first published," but this act did not in terms repeal the
provisions of the acts of 1842 and 1843, and in the leading case of Pitt
Pitts _v._ George, in 1896, the Court of Appeal, two judges to one,
decided that this exception was inconsistent with the previous acts and
not good law. In this case an English music publisher who had purchased
British copyright in Raff's "La Fileuse," sued to restrain the
importation of the original German edition. The lower court, relying on
the statute of 1844, refused relief, but the Court of Appeal granted an
injunction, holding, through Judge Lindley, that the complete exclusion
given to the British proprietor by the act of 1842 "is most in
accordance with legal principles and good sense." It was further held
that where the copyright had been divided, the words "the proprietor of
the copyright" indicate the owner of the English rights, and that if he
had to "submit to an unlimited importation of books lawfully printed in
any part of Germany itself," the British copyright "would be absolutely
worthless, and the beneficial object frustrated," and protection by
covenant with the original proprietor is by no means adequate.

{Sidenote: Foreign reprints}

The colonial copyright act of 1847, usually known as the foreign
reprints act, authorized suspension by the Crown of the prohibition of
importation of foreign reprints, in any colony enacting "reasonable
protection to British authors"--which protection, in the twenty colonies
in which the act was availed of, usually took the shape of a stated duty
to be paid as royalty to the British copyright proprietor. The customs
consolidation act of 1876 continued the general prohibition, on
condition of notice by the proprietor of the British copyright to the
Commissioners of Customs.

{Sidenote: Divided market}

Thus the British copyright and customs law recognizes the subdivision of
copyright territory for the exclusive control of a market, and excludes
accordingly foreign reprints whether piratical copies or authorized
foreign editions like the Tauchnitz series, and the original foreign
edition as well. In theory, if not in practice, a Tauchnitz copy in the
pocket of a traveler is subject to seizure, and written authority from
the copyright proprietor is technically necessary for the importation of
a single copy, apparently without exception in favor of the British
Government or the libraries.

{Sidenote: The new British code}

The new British measure continues these provisions as embodied in the
customs consolidation act of 1876 and the revenue act of 1889 and in the
text of the new act. Copyright is infringed by any person who "imports
for sale or hire any work ... which to his knowledge infringes
copyright." Importation is prohibited of copies made out of the United
Kingdom, which if made therein would infringe copyright and as to which
the owner of the copyright gives written notice to the Commissioners of
Customs in accordance with regulations by the Commissioners, which
regulations may apply to all works or to different classes. The Isle of
Man is specifically excepted from the United Kingdom in respect to this
section. But the section is made applicable with the necessary
modifications to any included British possession in respect to copies
made out of that possession. The text of the new measure, retaining the
phrase "for sale or hire" from the act of 1842 and reaffirming the
customs act of 1876, which makes no such exception, continues an
unfortunate ambiguity as to the importation of copies for private use,
but precedent and court decisions favor the complete control of the
market by the copyright proprietor through the complete exclusion of
foreign copies.

{Sidenote: Canadian practice}

Canada had, in an act of 1850, availed itself of the foreign reprints
act by imposing a duty "not exceeding 20 per cent" on foreign reprints
of English works, and under this act the Dominion later became "flooded"
with cheap American reprints, while the royalty to British authors,
fixed at 12-1/2 percent, was so inadequately collected that only £1084
was paid in the ten years ending 1876. Canada accordingly passed its
copyright act of 1875, providing for the reprinting of English copyright
works in Canada under Canadian copyright and prohibiting importation of
such works except in the original edition from the United Kingdom, and
this act, although opposed as an invasion of the exclusive control of
their works by British authors, was accepted by the British Parliament
in the Canada copyright act of the same year, with the proviso that
Canadian reprints should be prohibited importation into the United
Kingdom except with assent of the copyright proprietor. It has since
provided in the Fisher act of 1900 for the prohibition of importation of
an original edition of an English work licensed for reprint in Canada,
except two copies for libraries and one copy through demand on the
Canadian licensee by an individual for use and not for sale--a provision
considered _ultra vires_ by English authorities.

{Sidenote: Australian provision}

The Australian code of 1905 prohibits the importation of all pirated
books or artistic works in which copyright is subsisting in Australia,
"whether under this act or otherwise," and provides for the forfeiture
of such works, on condition of written notice by the owner of the
copyright to the Minister, directly or through the Commissioners of
Customs of the United Kingdom, of the existence of the copyright and of
its term. These provisions do not seem to make clear whether original
editions of English works, of which an Australian edition is
copyrighted, are held to be contraband.

{Sidenote: Foreign practice}

The legislation of France and Germany and other countries seems to
provide against importation inferentially rather than specifically,
Russia and Peru being exceptional in their specific prohibitions. But
the treaties and conventions between the several countries are for the
most part specific on this point, as are those of France providing that
"when the author of a work of which the property rights are guaranteed
by the present treaty shall have assigned his right of publication or of
reproduction to a publisher in the territory of either of the high
contracting parties with the reservation that the copies or editions of
this work thus published or reproduced cannot be sold in the other
country, these copies or editions shall be considered and treated,
respectively, in that country as illicit reproductions"; and the
treaties of Germany are especially specific with respect to musical
compositions.

The authorities as to the prohibition of importation in other countries
are fully given in a statement from the Librarian of Congress made part
of the printed record of the third hearing before the Patents Committees
at Washington, March 26-28, 1908, which includes the text of the opinion
in Pitt Pitts _v_. George as the leading English case.

{Sidenote: International practice}

The Berne convention of 1886 provided (art. XII) that "every infringing
(_contrefait_) work may be seized on importation into those countries of
the Union where the original work has right to legal protection," which
was modified by the amendatory act of Paris, 1896, to read "may be
seized by the competent authorities of the countries of the Union." The
Berlin convention continues in article 16 the later phraseology, and
adds, "in these countries seizure may also be made of reproductions
coming from a country where the work is not protected or protection has
ceased." All three conventions include also the proviso that the seizure
shall take place conformably to the domestic legislation of each
country. This phraseology apparently leaves the prohibition of editions
authorized for other countries as an open question to be determined
under the domestic legislation or practice of each country. The Pan
American convention of Buenos Aires, 1910, provides (art. 14): "Every
publication infringing a copyright may be confiscated in the signatory
countries in which the original work had the right to be legally
protected, without prejudice to the indemnities or penalties which the
counterfeiters may have incurred according to the laws of the country in
which the fraud may have been committed."



XVII

COPYRIGHT OFFICE: METHODS AND PRACTICE


{Sidenote: History of Copyright Office}

Under the early American copyright laws, copyright entries and deposits
were made in the clerk's office of the respective District courts and
there was no central copyright office. The deposit copies were not
properly cared for, but what remained were collected into the vaults of
the national Capitol when copyright administration was centralized in
the Library of Congress. Under the law of 1870, the Librarian of
Congress was made the copyright officer, and for many years Ainsworth R.
Spofford, occupying that position, personally recorded entries and did
much of the work. Before the close of his administration of the Library,
and while it was still housed in the Capitol, the copyright business
required the services of a staff including at the last twenty-four
persons. By a special act of 1897, the office of Register of Copyrights
was created, subject to the authority of the Librarian of Congress, who
remains the ultimate administrative authority. The code of 1909 provided
also for an assistant register of copyrights. The Copyright Office now
occupies the southern end of the ground floor in the new Library
building and the staff has increased to eighty-four persons.

{Sidenote: Routine of registration}

When a book is deposited for registration, accompanied by the claim for
copyright, preferably on the application form gratuitously provided by
the Copyright Office, its class designation, with its accession or
sequence number in that class, is at once stamped upon the deposit copy
or copies, with the date of receipt, and also upon a green record slip
on which all details in the progress of the work through the Copyright
Office are recorded with exact time of each act and the initials of the
respective clerks. This record, when completed, shows, besides the class
number and the title of the work, the date and hour of the receipt of
deposit copies and of the receipt of application, affidavit and fee,
with memorandum of the disposition of the fee if out of the ordinary
course; the examination of the application and affidavit, the
preparation of the white card for printer's copy, and the clearance of
the work. Thus cleared, the book is ready for examination by the Library
Commission, the delivery of one copy to the Catalogue Division of the
Library of Congress, the making of the certificate and its record and
the making of the index cards, all of which acts are performed usually
on the day of receipt, or otherwise as early as practicable on the
following day. The record slip also provides for noting and notifying
claimants of defects as to the deposit copies or the application for
copyright, and for noting also the reference to other departments, and
the disposition of second deposit copies.

{Sidenote: Treatment of deposits}

The deposit copies, as entered on day of receipt and stamped with date,
group and accession number, are placed on a table for inspection by what
is known as the Library Commission of the Library of Congress,
consisting of the Assistant Librarian, the Superintendent of the Reading
Room and the Chief of the Catalogue Division, who decide which books are
desired for the Library of Congress, and whether one or two copies
thereof are required; one copy not so required is retained as part of
the records of the Copyright Office. Accumulations of the past years and
current accessions were until recently stored in the sub-basement of the
Library of Congress building, but a new stack now furnishes abundant and
well-lighted space for deposit copies and gradually all deposit articles
will be removed to this stack. The new provision for the destruction of
useless material happily prevents the continuing storage of such
material to an indefinite future.

{Sidenote: Destruction of useless material}

The Librarian of Congress and the Register of Copyrights jointly are
authorized "at suitable intervals" to determine what articles received
during any period of years and remaining undisposed of, are useful for
permanent preservation, and in their discretion to provide for the
destruction of others, after a statement of the years of receipt of such
articles and notice to permit any lawful claimant to claim and remove
them has been printed in the catalogue of copyright entries from
February to November, permitting their reclamation within the month of
December. There is a special proviso that no manuscript of an
unpublished work shall be destroyed during the term of copyright without
specific notice to the copyright proprietor of record, permitting him to
claim and remove it.

{Sidenote: Register of Copyrights}

The Register of Copyrights, originally appointed by the Librarian of
Congress under the act of February 19, 1897, is made by the new code of
1909 a permanent administrative officer, appointed by and under the
direction and supervision of the Librarian of Congress at a salary of
$4000 per year and under bonds of $20,000. He is authorized under the
law to make rules and regulations for the registration of claims to
copyright, subject to the approval of the Librarian of Congress; is
required to make an annual report to the Librarian of Congress to be
printed in the annual report on the Library of Congress; to cover all
fees into the Treasury and report as to the same to the Secretary of the
Treasury and to the Librarian of Congress, and to provide and keep the
necessary record books, indexes, etc. He is authorized to affix the seal
of the Copyright Office provided for by law, and is happily relieved by
the new code from the necessity of formal signature of certificates,
etc., which under the old law wasted precious and difficult hours in
small routine work, the affixing of the seal being the sufficient and
sensible substitute for the personal signature. An assistant register of
copyrights at a salary of $3000 was provided for in the new act, also to
be appointed by the Librarian of Congress, with authority during the
absence of the Register to attach the seal and perform other necessary
functions.

{Sidenote: Catalogues and indexes}

The law directs that the Register of Copyrights "shall print at periodic
intervals a catalogue of the titles of articles ... together with
suitable indexes, and at stated intervals ... complete and indexed
catalogues for each class of copyright entries, "which shall be admitted
in any court as _prima facie_ evidence," shall be promptly distributed
to collectors of customs and postmasters of all exchange offices and
shall be furnished to others at a price not exceeding $5 per annum for
the complete catalogue or $1 for the catalogues issued during the year
for any one class.

The practice of the Copyright Office is to make for each copyrighted
book an index card, in conformity with the printed catalogue card of the
Library of Congress, and to utilize the linotype slugs set for this
purpose, with some modification, as the basis for the "Catalogue of
copyright entries" for books. The catalogue for books proper, Part I,
Group 1, is printed weekly with an annual index, which, together with
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
_Société 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
Littéraire 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 Littéraires 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
publiées_) means works actually issued to the public (_oeuvres éditées_)
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 publiées_) are again defined as works that
have been issued (_oeuvres éditées_). "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
Röthlisberger, 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 coöperative 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
coöperation 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
coöperation 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. Irenæus 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 coöperation 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
cyclopædias, 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 coöperation. 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 £1084 in
ten years--that there was much dissatisfaction, and this impost was
finally discontinued in 1895, whereupon the suspension under the
Imperial act of 1847 of the prohibition of importation ceased to be in
force in Canada and foreign reprints of British copyright works were
again under the Imperial law prohibited.

{Sidenote: Acts of 1875}

In 1872 a new Canadian copyright act was passed, but it was disallowed
by the Imperial authorities, whereupon, in 1875, the Parliament of
Canada passed a new act, carefully drawn to avoid conflict with Imperial
legislation. To remove any doubts as to its validity, the "Canada
copyright act" of 1875 was passed by the British Parliament to authorize
the royal assent. This Imperial act forbade the importation into the
United Kingdom of colonial reprints, though authorized for the Canadian
market by British authors (and therefore not piracies), of any work
which might be copyrighted in Canada, and in which copyright subsisted
in the United Kingdom. The Canadian act of 1875 then received the
approval of the Crown, and as replaced and substantially re-enacted by
the Revised Statutes of Canada, 1886 (c. 62),--which also included (as
c. 37) the amendatory act of 1886, prohibiting the importation of
"reprints of Canadian copyright works and reprints of British
copyrighted works which have been also copyrighted in Canada,"--is still
in force, being now Revised Statutes, 1906, c. 70, pt. I, as the
fundamental Canadian copyright law, subject to amendments since passed
and approved. The Imperial and Canadian laws of 1875, taken together,
make it possible to issue in Canada cheaper reprints of British
copyright works, by arrangement with the author or copyright owner,
without interfering with the more costly English editions.

{Sidenote: License acts disallowed}

It should here be noted that the Canadian act of 1889, as amended by the
Canadian act of 1895, constituting Part II of chapter 70 of the Revised
Statutes, 1906, has never been approved and brought into force by
proclamation of the Governor-General. The act of 1889, following the
Imperial international copyright act of 1886, extended Canadian
copyright on condition of registration with the Minister of Agriculture,
and printing and publication or production in Canada within one month
after publication or production elsewhere, and provided that the
Minister of Agriculture might grant licenses, not exclusive, for the
production of works not thus protected on an undertaking to pay to the
author ten per cent royalty on the retail price, in which case
importation of foreign-made (but not British) editions might be
prohibited during the copyright period. The act of 1895 extended this
license system to works which the copyright proprietor failed to keep in
print in Canada, unless he should give satisfactory assurance of prompt
reissue. These acts, as noted, never became effective.

{Sidenote: The Fisher act, 1900}

In 1900 an amendment to the copyright act was passed which is sometimes
referred to as the Fisher act. It provides that if a book, as to which
there is subsisting Canadian copyright under the copyright act, has
first been published in any part of the British dominions other than
Canada, and the owner of the copyright has granted a license to
reproduce in Canada an edition of such book designed for sale in Canada
only, the Minister of Agriculture may prohibit the importation into
Canada, except with the written consent of the licensee, of any copies
of such book printed elsewhere, excepting two copies each for the use of
public or institution libraries. There is some question as to the
compatibility of this act with Imperial law.

{Sidenote: Minor acts}

{Sidenote: Short form of notice}

An act of 1887 had authorized the transfer from the Minister of
Agriculture to the Minister of Trade and Commerce of the registration of
industrial designs and trade-marks, but this transfer has never taken
place. The acts of 1890 and 1891 provided for copyright suits in the
Exchequer Court of Canada in the name of the Attorney-General or at the
suit of any person interested. The act of 1895 also contained a
provision adding to the two deposit copies required for Canada a third
for deposit in the British Museum. Finally an act of 1908 substituted
the short form of copyright notice, "Copyright, Canada, 19__, by A. B."
This completes the history of Canadian copyright legislation.

{Sidenote: Proposed Canadian copyright code, 1911}

The copyright legislation of Canada will presently be replaced by a
comprehensive code, utilizing the permission granted by the new Imperial
copyright measure to self-governing dominions. The new bill, of which
the original text, as submitted to Parliament April 26, 1911, is given
in full in the appendix, will establish relations between the Dominion
of Canada and the Imperial authority closely similar to those
established by the Australian act of 1905, between that Commonwealth and
the home government. It pushes still further the precedent of
"protection to home industries" followed by American copyright
legislation since 1891, and is a far more drastic measure, evidently in
retaliation against the United States and with preferential relations
toward Great Britain in view. Americans can scarcely criticize, however,
the logical application in Canada of legislation on this side of the
border. Copyright is to "subsist in every original literary, dramatic,
musical and artistic work the author of which was at the date of making
the work a _bona fide_ resident in Canada," not first published outside
Canada (simultaneous publication being defined as within fourteen days),
conditioned on registry before publication, and the manufacture of every
copy within Canada. One registration of a periodical is to protect all
future issues. Copyright it is proposed to define broadly, as in the
new English bill, including the right "if the work is unpublished, to
publish the work," thus bringing unpublished works within the statute
law and probably excepting them from common law protection; and
protection against mechanical music reproduction is also to be included.
 The term is to be for the life of the author and fifty years
thereafter, with the new British proviso as to works of joint
authorship, that the term is to be for the life of the author who dies
first and fifty years thereafter, or the life of the author who dies
last, whichever period is the longer. Assignment of copyright must be
in accordance with the acts, and be registered. Importation of copies
made out of the British dominions is prohibited. In case of a license
for a Canadian edition of a book, copies printed elsewhere may be
prohibited importation, except two copies for library use. Copyright may
also be extended to foreign citizens under arrangements made by the
governor in Council. British subjects resident elsewhere than in Canada
may be brought under the act by Order in Council.

{Sidenote: Imperial and Canadian copyright}

{Sidenote: Requisites for domestic copyright}

The Imperial and Canadian copyright laws, apparently a complexity of
complexities, are construed with relation to each other and thus do not
conflict. Each is good _pro tanto_. The Canadian copyright law permits
any person domiciled in Canada or in any part of the British
possessions, or any citizen of any country which has an international
copyright treaty with the United Kingdom, who is the author of a
literary, scientific or artistic work, to obtain copyright in Canada for
twenty-eight years, with a right of renewal for fourteen years to the
author, if living, or to his widow or children, if he is dead,
conditioned on re-registration within one year _after_ the expiration of
the original term, publication of a renewal notice in the Canadian
Gazette and fulfillment of the obligations of original copyright. The
requirements for obtaining domestic copyright in Canada are that the
work shall be printed and published in Canada, shall be registered and
three copies thereof deposited at the Department of Agriculture
(Copyright Branch) before publication, and that each copy published
shall bear the notice as cited above. In the case of paintings, drawings
and sculpture, the original work may be protected by deposit of a
written description instead of copies.

{Sidenote: Imperial and local protection}

Under the Imperial copyright act of 1886, providing that a book first
published in any part of the British dominions shall have copyright
throughout those dominions, works are protected in Canada under that
act. Subjects or citizens of a country which has no international
copyright relations with the United Kingdom may obtain copyright in
Canada under the Canadian law by showing that they have British
copyright in the work and complying with the other Canadian
requirements. Copyright obtained under the Canadian copyright law, so
far as it relates to books first published in the British dominions, is
in addition to and concurrent though not co-terminous with Imperial
copyright. The Copyright Branch in the Department of Agriculture is in
charge of the Registrar of Copyrights, Trade Marks and Designs, a post
filled since 1906 by P. E. Ritchie, Esq. Canadian copyright may be
obtained in a work although the Imperial copyright may have been lost by
reason of first publication having been made outside of the British
dominions or treaty relationship, the Canadian law providing that
literary works may be protected when printed and published in Canada,
whether they are so published for the first time or contemporaneously
with or subsequently to publication elsewhere.

{Sidenote: Additional local protection}

Canadian copyright also affords additional protection and relief not
granted by Imperial copyright, by provisions (1) that the importation
into Canada of foreign reprints of Canadian copyright works is
prohibited, and (2) that every person who knowingly prints, publishes,
sells, or exposes for sale any piratical copy of a copyright work shall
forfeit every such copy to the copyright owner and shall pay for every
such copy found in his possession, printed, published or exposed for
sale by him not more than one dollar and not less than ten cents, one
half of which shall belong to the copyright owner.

{Sidenote: Application for copyright}

An applicant for Canadian copyright, either the proprietor or his
authorized agent, whether domiciled in Canada or other British
possessions or a citizen of a country having an international copyright
treaty with Great Britain, should make application to the Minister of
Agriculture (Copyright Branch), Ottawa, Canada, for which statutory
forms are provided from that office, attested by two witnesses and
accompanied by a fee of one dollar for copyright registration, or fifty
cents in case of _interim_ or temporary copyright, and three copies of
the book (full bound), map (mounted), etc., as printed and published in
Canada, or written description of a work of art. A book must bear the
statutory copyright notice, but a work of art the signature of the
artist only. An author or his legal representative may obtain _interim_
copyright pending publication or republication in Canada or temporary
copyright during serial publication, by registering the designation or
title of a work. Thus a citizen of the United States may protect his
work in Canada through international copyright by first publication in
the British dominions and also through Canadian copyright, with
additional protection, by complying with the requirements of the
Canadian law, which are in some respects closely parallel with those of
the United States.

{Sidenote: Newfoundland}

In Newfoundland, always a separate colony and now a self-governing
dominion separate from the Dominion of Canada, an act of 1849 for the
protection of British authors was followed by an Order in Council of the
same year extending to that colony the provisions of the Imperial act of
1847. It made provision, following the precedent of Canada, for a
customs duty on foreign reprints of British copyright works, which
provision was re-enacted in the Consolidated Statutes of 1872 as chapter
53 and again in the Consolidated Statutes of 1892 as chapter 111, the
duty being at twenty per cent. In 1890 a copyright act was passed,
which remains the fundamental copyright act of Newfoundland, as included
in the Consolidated Statutes of 1892 as chapter 110, supplemented by
chapter 111, as above indicated. These two chapters have been amended
only by the act of 1898 placing copyrights, patents and trade marks
under the jurisdiction of the Colonial Secretary, an officer provided
for in the act, and the act of 1899 reducing the copyright fee of one
dollar to twenty-five cents in the case of photographs. Copyright in
Newfoundland is on the same general lines as in Canada, following in
large part the precedent of the United States, and is for a term of
twenty-eight years with renewal for fourteen years--local protection as
distinguished from Imperial protection being given to works printed and
published--or in the case of works of art, produced--within
Newfoundland, on condition of registration with the Colonial Secretary
and deposit with him of two copies of a printed work, bearing statutory
copyright notice, or of the description of a work of art,--which work
must bear the signature of the artist,--one of the two copies being for
the use of the Legislative Library.

{Sidenote: British West Indies, etc.}

In the British West Indies, Jamaica has domestic legislation of 1887
under the Imperial act of 1886, for the British term, requiring the
deposit at an office notified in the Jamaica _Gazette_ of three copies
within one month from publication--one for the British Museum, one for
official use, and one for a designated public library. The Governor may
declare one copy sufficient where deposit of three copies would inflict
injury. Trinidad, under an ordinance of 1888, provides similarly for the
deposit of three copies in the office of a Registrar of copying rights,
with optional but not obligatory registration of playright. The minor
British islands in the West Indies, the Bahamas, British Guiana and
British Honduras, seem not to have provided local legislation, but
remain exclusively under Imperial law.

{Sidenote: Australian code of 1905}

The copyright act, 1905, of the Commonwealth of Australia, assented to
December 21, 1905, is a comprehensive code superseding previous
copyright legislation by the several states formerly separate colonies,
New South Wales, Victoria, Queensland, South Australia, Western
Australia and Tasmania, although it preserves the rights in existing
copyrights taken out under the several state acts. International
copyrights under acts of the Parliament of the United Kingdom and state
copyrights may be registered under this act and then enforced throughout
the Commonwealth. This act covers (Part III) literary, musical and
dramatic copyright and separately (Part IV) artistic copyright. Part I,
preliminary, deals with definitions, and Part II with administration.
Part V deals with infringement, Part VI with international and state
copyright, Part VII with registration and Part VIII with miscellaneous
provisions. "The common law of England" is specifically applied to
unpublished literary compositions. The Australian code is of course
concurrent though not co-terminous with the Imperial law, and must be
construed in consonance with it. It is admitted that artistic works are
not protected in Australia under either Commonwealth or Imperial law
unless "made in Australia," and this serious difficulty the Commonwealth
authorities proposed to remedy by an amendatory act which was presented
to the Commonwealth legislature in 1906 but was not then passed. To
prevent importation of pirated works, written notice of the copyright
and its term should be given to the Minister in Australia unless
communicated to him by the Commissioners of Customs of the United
Kingdom, from registry in London, through the lists periodically
distributed.

{Sidenote: General provisions}

Copyright in a book covers the right, directly or by authorization, to
copy, abridge, translate, dramatize or novelize, and in the case of a
musical work "to make any new adaptation, transposition, arrangement, or
setting of it, or of any part of it in any notation." "Copyright shall
subsist in every book" (including by definition a dramatic or musical
work, when printed and published), "whether the author is a British
subject or not, which has been printed from type set up in Australia, or
plates made therefrom, or from plates or negatives made in Australia, in
cases where type is not necessarily used, and has ... been published in
Australia before or simultaneously" (defined as within fourteen days)
"with its first publication elsewhere"; and the copyright term is
forty-two years from first publication in Australia or the life of the
author or of the last surviving joint author and seven years thereafter,
whichever the longer. Performing right and lecturing right subsist
separately for a like period from first public performance or delivery
in Australia simultaneously with first public performance or delivery
elsewhere. But lecturing right ceases if a lecture is published as a
book. The author is the first owner of copyright or performing right,
except as employed for valuable consideration, and in the latter case
may reprint an article from a periodical after one year. Copyright
subsists in every artistic work "made in Australia," but the copyright
of a portrait or photograph is with the person ordering it.

{Sidenote: Dramatic and musical works}

A dramatic work includes a libretto or lyrical work set to music or
otherwise, "or other scenic or dramatic composition"; a musical work is
defined as "any combination of melody and harmony, or either of them,
printed, reduced to writing or otherwise graphically produced or
reproduced"--which seems to omit mechanical reproductions.

{Sidenote: Performing right}

Copyright is a distinct and separable property from performing right or
the ownership of an artistic work, and either right may be separately
assigned under any conditions or limitations. Where a dramatic or
musical work is published as a book, notice of reservation of performing
right must be printed thereon, in default of which the owner of the
performing right cannot obtain damages from an infringer, but may obtain
them from the owner of the copyright who has neglected after notice to
print such reservation. The proprietor, tenant or occupier who permits a
place to be used for an infringing performance shall be deemed an
infringer. The owner of a performing right may himself issue notices in
writing forbidding performance, disregard of which involves a specified
fine.

{Sidenote: Registration and license}

Provision is made for a registrar and deputies, and for a general
Copyright Office where shall be kept separate registers of literary
copyrights, of fine art copyrights and of international and state
copyrights. The owner of any copyright, performing or lecturing right
may obtain registration by the deposit of two copies of the best edition
of a book or one copy of an art work or photograph of it, and no suit
can be maintained prior to such registration. In case, after the death
of an author, the owner of the copyright or performing right withholds
the work from the public, the Governor-General may grant a license for
publication or performance.

{Sidenote: New Zealand}

New Zealand, now a separate self-governing dominion, provided when a
British colony,--like the Australian colonies before their consolidation
into the self-governing Commonwealth,--by an Ordinance of 1842 for a
copyright term of twenty-eight years or life, whichever the longer, and
has since passed special acts, covering specific classes, 1877 to 1903,
but seemingly no general code. Photographs are protected for five years
from the taking. Telegraph dispatches were protected by the electric
lines act of 1884. Local registration seems to be provided only, and
then optionally, for the protection of plays, for which purpose
application with a copy of the play should be made at the Registry of
Copyrights, Wellington, and if the play is printed a copy deposited in
the Library of the General Assembly; and summary jurisdiction, with
power of fine and imprisonment, is then given to the magistrates. To
prevent importation, notice may be filed with the Minister of Customs in
New Zealand, or through the London commissioners, as in the case of
Australia.

{Sidenote: Australasia otherwise}

In the other British islands of Australasia and the Pacific, Imperial
copyright exclusively prevails, as a Fiji Islands' Ordinance of 1903,
the only one passed in any of the smaller islands, was disallowed by the
Crown.

{Sidenote: British India}

British India provided a general copyright act in 1847, in line with
preceding Imperial legislation, and under the press copyright act of
1867, somewhat modified the British Imperial law, especially providing
for deposit of three copies in an office to be designated from time to
time in the official gazette, within one month from publication, and the
printing on each copy of the printer's and publisher's names. Quarterly
publication of such titles is provided for as part of the official
gazette. The general term is as in Great Britain, for life and seven
years or forty-two years, whichever is longer, with variations for
particular classes of works. Ceylon, Mauritius and Hong Kong have the
like term and also provide for three deposit copies. In all these cases
one copy is retained by the Secretary of State of the colony, one put at
the disposition of the Governor and Council, and one after registration
deposited in a designated public library. Straits Settlement (Singapore)
provides for registration without deposit, in the office of Colonial
Secretary. To prevent importation into British India, specific notice
may be filed directly with the Collectors of Customs at Bombay, Madras
and Calcutta as well as through the London customs.

{Sidenote: South Africa}

South Africa, the latest of the British self-governing dominions as
organized in 1910 into a Union, has not yet adopted a general copyright
code, which it may do under the precedent of Australia or after passage
of the new British copyright code, by acceptance of that code or by
independent legislation. Meantime its copyright relations are those of
the former separate colonies, as the Cape Colony, Natal and other
English colonies, following in the main English precedent, and the
Transvaal and other Dutch colonies, following Holland precedent,
including a requirement for printing within the country as a
prerequisite for copyright.

{Sidenote: Cape Colony}

The Cape Colony, under acts of 1873, 1880, 1888 and 1895, provided local
copyright for life and five years or thirty years, whichever the longer,
four copies of a book or printed play first published in the colony to
be deposited for registration by the printer within one month from
delivery from the press, for registration with the Registrar of Deeds,
these copies to be transmitted to designated libraries. Telegraph
dispatches in newspapers were protected by the act of 1880, for 120
hours. Lists of copyrighted works are printed in the government gazette
and thus communicated to the colonial customs authorities.

{Sidenote: Natal}

Natal, under acts of 1895, 1897 and 1898, provided local protection for
the regular British term, two copies to be deposited with the Colonial
Secretary for registration, within three months from publication.
Messages by telegraph, pigeons and other special dispatch were protected
by the act of 1895, for 72 hours. To protect a play, the title, if in
manuscript, or a printed copy, must be registered precedent to local
action. Probably failure to deposit in these colonies does not forfeit
copyright, and imperial provisions generally hold good.

{Sidenote: Transvaal}

The Transvaal, under local legislation of 1887, provided protection for
fifty years from registration, receipt or for life, on condition of
printing within the colony, and the deposit of three copies thus
printed, within two months of publication, accompanied by the affidavit
of the printer, without which formalities copyright was forfeited. A
resolution of 1895 authorized waiver of the printing requirement in the
case of countries having reciprocal relations. Reservation by printed
notice was required to protect playright and right of translation;
playright in a printed play was limited to ten years, but for an
unpublished play was for life and thirty years. All these colonies,
whether formerly British or Dutch, are probably now under Imperial
copyright law, which would nullify local provisions incompatible with
that law, pending the enactment of a South African general code.

{Sidenote: West coast colonies}

Sierra Leone and the neighboring British colonies on the west coast, as
Gambia and the Gold Coast, are under imperial copyright law, and passed
local ordinances under the provisions of the British act of 1886, Sierra
Leone having provided by Ordinance of 1887 for copyright for the usual
British term with deposit of three copies in an office to be designated
in the Sierra Leone Royal _Gazette_, and the other colonies having
similar provisions.

{Sidenote: Mediterranean islands}

The Mediterranean islands of Malta and Cyprus, in addition to imperial
copyright, have local ordinances providing respectively for registration
in an office notified in the government gazette, and deposit of three
copies, within one month from publication. Gibraltar seems to be only
under Imperial copyright.



XXI

COPYRIGHT IN OTHER COUNTRIES


{Sidenote: France}

France has always been the most liberal of countries in giving copyright
protection to foreign as well as native authors publishing within
France, and copyright was perpetual up to the abrogation by the National
Assembly in 1789 of all privileges previously granted. Though two acts
regarding dramatic performances (_spectacles_) were passed in 1791, it
was not till 1793 that the National Convention passed a general
copyright act, which still remains the fundamental law of French
copyright. The state still has copyright in perpetuity in works
published by its order or by its agents, but not in private copyrights
lapsing to the state for lack of heirs; copyrights otherwise, by the law
of 1866, are for life and fifty years. Playright is protected without
deposit, but the printer of a book or play is required to deposit two
copies on penalty of fine but not forfeiture of copyright. No
formalities are requisite, but to obtain a right of action, deposit of
two copies of a book is required, at the Ministry of the Interior at
Paris or at the Prefecture or town clerk's office if in the provinces,
for which a receipt is given. More than a score of laws modifying the
French copyright system have been passed, the latest being that of April
9, 1910, providing that transfer of a work of art does not involve the
copyright.

{Sidenote: French foreign relations}

France, which had in general extended the protection of domestic
copyright to works published in France, whatever the nationality of the
author, specifically protected, by the decree of 1852, from
republication (though not from performance) works published abroad,
without regard to reciprocity, on compliance with the formalities of
deposit previous to a suit for infringement. It early negotiated
treaties with other countries, only those with England (since replaced
by relations through the International Copyright Union) and Spain
requiring deposit in those countries, while four of the countries which
required registration permitted that it should be performed at their
legations in Paris.

France, as also its protectorate Tunis, became one of the original
signatory powers of the Berne convention of 1886, adopted the Paris acts
of 1896, and after some delay and discussion accepted the revised Berlin
convention under the act of June 28, 1910, ratified by decree of
September 2, 1910, with reservation as to works of applied design, as to
which it maintained the stipulations of the previous conventions. It has
treaties with Austria-Hungary (1866-1884), Holland (1855-1884),
Montenegro (1902), Portugal (1866), and Roumania by an arrangement on
the "most favored nation" basis (1907). It has also still existing
treaties with Germany (1907), Italy (1884), and Spain (1880), among the
unionist countries, on the "most favored nation" basis--former treaties
with Great Britain and the Scandinavian countries having been superseded
by International Copyright Union relations. It has been in reciprocal
relations with the United States as a "proclaimed" country since July 1,
1891; and it has also treaties with the Latin American countries of
Argentina (1897), and Paraguay (1900), both under the Montevideo
convention, Bolivia (1887), Costa Rica (1896), Ecuador on the "most
favored nation" basis (1898, 1905), Guatemala (1895), Mexico through a
treaty of commerce on the "most favored nation" basis (1886), and
Salvador (1880), and one with Japan (1909) as to rights in China.
Algiers and other colonies are under French law, and French precedent is
followed by the protectorate Tunis, though as a separate power.

{Sidenote: Belgium}

Belgium, under the law of 1886, grants copyright and playright for life
and fifty years, including translations and photographs, or for
corporate and like works fifty years. No formalities are required except
that corporate and posthumous works must be registered at the Ministry
of Agriculture within six months from publication. Notice is required
only to forbid reproduction of newspaper articles. Belgium is one of the
original parties to the Berne convention, adopted the Paris acts and
ratified on May 23, 1910, the Berlin convention. It has treaties with
Austria (1910), Holland (1858), Portugal (1866), and Roumania (1910), as
also with Germany (1907) and Spain (1880)--all save Austria and Portugal
on the "most favored nation" basis; it has been in reciprocal relations
with the United States as a "proclaimed" country since July 1, 1891, and
as to mechanical music since June 14, 1911, and has also treaties with
Mexico on the "most favored nation" basis (1895), and under the
Montevideo convention with Argentina and Paraguay (1903).

{Sidenote: Luxemburg}

Luxemburg, under its law of 1898, very nearly a copy of the Belgian law,
grants copyright and playright for life and fifty years. The right to
translate is protected for ten years from the publication of the
original work. Registration is required only for posthumous or official
works to be made at the Office of the Government; and notice is required
only to reserve playright or to forbid reprint of newspaper articles.
Protection is provided against mechanical music reproductions. Luxemburg
was an acceding party to the Berne convention, accepted the Paris acts
and ratified the Berlin convention July 14, 1910; it has had reciprocal
relations with the United States as a "proclaimed" country since June
29, 1910, and as to mechanical music since June 14, 1911.

{Sidenote: Holland}

Holland, originally giving copyright in perpetuity under indefinite
conditions, and later applying French law, is now under its law of 1881,
the only country in Europe still requiring, in accordance with its
ancient practice, printing and publication within the country. Two
copies, so printed, must be deposited with the Department of Justice
within a month from publication, and playright must be reserved on a
printed work. The general term is for fifty years from the date of the
certificate of deposit and through the life of the author, if he has not
assigned his work, and for unprinted works, including oral addresses,
life and thirty years. The protection for unprinted works covers
playright and the right to translate, and protects any author domiciled
within Holland or the Dutch Indies. For corporate and like works, the
term is fifty years. The exclusive right to translate, must be reserved
on the original work and exercised within three years; the translation
is then protected for five years, provided it is printed within the
country. Playright in a printed play lasts only ten years from deposit.
Holland is not a party to any general convention, but it has a treaty
with Belgium on the "most favored nation" basis (1858) and arrangements
with France (1855-1884); and it has had reciprocal relations with the
United States as a "proclaimed" country since November 20, 1899. The
Dutch colonies, as in the East and West Indies and elsewhere, are
generally included under Dutch law. A new copyright code presented by
the government in 1910, omitting the printing requirement, has passed
the first Chamber, and after it becomes law Holland, under a concurrent
vote in 1911, is authorized to accede to the Berlin convention.

{Sidenote: Germany}

Copyright throughout the German Empire is now regulated for literary
(impliedly including dramatic) and musical works and certain
illustrations, by the act of 1901,--in which year there was also adopted
an act regulating publishers' rights and contracts; and for works of
figurative art and photographs by an act of 1907. An act of 1910 amends
these in some particulars.

{Sidenote: History}

These laws superseded entirely the previous acts, dating back to 1870,
when the first imperial copyright act was passed after the realization
of German unity under Emperor William I. The original act forming the
Germanic confederation in 1815, had authorized the German Diet to
protect authors' rights, and after futile decrees in 1832 and 1835,
resolutions were passed in 1837 making protection effective for a
minimum period of ten years throughout all the states which granted
protection to authors. Prussia had meanwhile, under the King's Order in
Council of 1827, arranged in 1827-29, reciprocal relations with
thirty-three out of the thirty-eight states and free cities in the
German confederation, and with Denmark for its German provinces, through
which the citizens of other states enjoyed the same privileges as
natives; and in 1833 the same reciprocal provisions were extended to
cover Prussian provinces outside the federation. Many of the early
copyright systems had not extended protection to an author's heirs, but
in 1837 Prussia passed an improved law making the term life and thirty
years and granting protection to citizens of foreign countries in the
same proportion that works published in Prussia were therein protected.
Thus, up to the time of the Empire, copyright was protected as a matter
partly of federal and partly of state legislation.

{Sidenote: Laws of 1901-07}

Copyright under the imperial legislation of 1901-07 was granted for life
and thirty years, and furthermore for posthumous works at least ten
years from publication; and for anonymous, pseudonymous and corporate
works, thirty years. Copyright in photographs is for ten years only, and
in any event ceases ten years after the author's death. The copyright
term is reckoned from the end of the calendar year of an author's death
or of publication. In joint authorship, the term is from the death of
the last surviving author. Playright is, inferentially, under like terms
and conditions. The author of anonymous or pseudonymous works, on
registering his name, may obtain protection for the full term. In works
published in parts, the publication of the last part determines the
copyright term. Corporate bodies (juridical persons) are recognized as
authors; in composite works the originator of the work as a whole, or if
no such editor is mentioned, then the publisher, is regarded as author;
if a literary work is accompanied by music or by illustrations, the
author of each part is regarded as originator of his separate work; in
inseparable composite works, a partnership arrangement is recognized by
the law. No formalities are required, but registration of the author's
name on its disclosure in the case of an anonymous or pseudonymous book,
may be made in the register to be kept by the Municipal Council of
Leipzig for a fee of a mark and a half (36 cents) and expense of
official publication originally in the _Börsenblatt_, but since a law of
1903 in the _Reichsanzeiger_. Translations, adaptations, etc., are
protected as original works. Official documents, public speeches, etc.,
are not protected, and reproduction of newspaper articles, except those
of a scientific, technical or recreative character, is permitted, unless
reservation is made, on condition of acknowledgment and that the meaning
shall not be distorted. Extracts are permitted under specified
limitations. Poems may be used as set to music unless distinctively
intended for that purpose; and musical compositions, except operas and
the like, may be played for charity purposes or by musical societies for
members and their families.

{Sidenote: Art provisions}

In the case of a work of art, reproduction for personal use and
gratuitously is permitted, but during an author's life only by
photographic means; this permission authorizes only, as to a work of
architecture, reproduction of exterior aspect and not of the work upon
the ground. The person ordering a portrait is entitled to reproduce it,
except on agreement to the contrary. Reproduction and exhibition are
permitted of portraits in contemporary history or when accessories, as
in a landscape or part of a procession or assemblage, or in the interest
of art if not made to order,--provided this is not to the injury of the
reputation of the original; or in the interest of justice or public
safety. Reproductions of works standing permanently in public places are
permitted, but these may not be affixed to a work of architecture.

{Sidenote: Piracy}

Piracy is punished by damages and a statutory fine, or imprisonment in
case of intentional infringement, but proceedings must be commenced
within three years. The law provides for committees of experts in the
several states under regulations of the imperial government to act as
arbiters or to advise the justices; and there is final appeal to the
Supreme Court of the Empire.

{Sidenote: Foreign citizens}

The law protects all works of a subject of the German Empire and works
of aliens, if published within the Empire before previous publication
elsewhere, the latter clause a change from the former practice of
protecting works by a foreigner if published by a firm having a place of
business or a branch within the Empire.

{Sidenote: German foreign relations}

Germany was a party to the Berne convention and to the Paris acts, and
ratified July 12, 1910, the Berlin convention. This ratification was
made possible by an act of May 22, 1910, modifying domestic copyright to
conform with the provisions of the Berlin convention, and incidentally
repealing and replacing sec. 22 of the law of 1901, regarding mechanical
music reproduction, as fully stated in the chapter on that subject. On
July 12, 1910, the Emperor promulgated an ordinance providing for the
application of the law, and both the Berlin convention and this new law
became effective September 9, 1910.

Germany has treaties outside the Union with Austria-Hungary (1899), has
special treaties beyond the provisions of the Union on the "most favored
nation" basis, made in 1907 with Belgium, France, and Italy, and has
been a "proclaimed" country in reciprocal relations with the United
States since January 15, 1892. By proclamation of December 8, 1910,
reciprocal relations as to mechanical music reproductions were also
proclaimed between Germany and the United States.

{Sidenote: Austria-Hungary}

In Austria-Hungary, the dual states of that empire have separate
copyright as well as other legislative relations. Austrian domestic
copyright is based on the law of 1895, as amended by that of 1907, and
Hungarian on the law of 1884. Copyright in Austria is dependent on
publication within the country and citizenship or reciprocal relations;
in Hungary on publication by a Hungarian publisher and two years'
residence in the case of foreign authors whose country is not in
reciprocal relations. In Austria the general term is for life and thirty
years, in Hungary life and fifty years, or for corporate, anonymous and
like works, thirty or fifty years respectively, unless the anonymous
author discloses his identity. Registration, in Austria at the Ministry
of Commerce, and in Hungary at the Ministry of Agriculture, is required
only for anonymous and pseudonymous works, and in Hungary in other
special cases, as plays. The right of translation must be reserved on
the work, for specified languages or in general, and must be exercised
within stated periods; notice is also required on photographs, and in
Austria on musical works to protect performing right. Posthumous works,
if published in the last five years of the thirty or fifty year term,
are protected for five years from publication. Photographs are protected
only for ten years in Austria and five years in Hungary. Collections of
telegraph news, as printed in a newspaper, are protected in Hungary.
Austria and Hungary have a treaty with each other (1907), and jointly
with Great Britain (1893), Germany (1899), France (1866-1884) and Italy
(1890), involving in the case of Hungary registration in Hungary as well
as in the country of origin. Austria has also treaties with Belgium
(1910), Denmark (1907), Roumania (1908), and Sweden (1908), and has been
in reciprocal relations with the United States as a "proclaimed" country
since December 9, 1907; Hungary is negotiating reciprocal relations with
the United States, but has otherwise no separate treaties. Neither
Austria nor Hungary is a unionist country.

{Sidenote: Switzerland}

Switzerland, under its federal constitution of 1874 and the law of 1883,
provided copyright for life and thirty years or for corporate and like
works thirty years, giving protection for the full term to translations
if the right to translate is exercised within five years from
publication. Photographs were protected for five years only. No
formalities are required, though an author has the option of registering
his work, with the exception that registration in the Office of
Intellectual Property is required within three months from publication
for the protection of posthumous and official publications and
photographs. Notice of reservation of playright is required on printed
copies. Switzerland was an original party to the Berne convention,
accepted the Paris acts and ratified the Berlin convention without
reservation in 1910. It has had reciprocal relations with the United
States as a "proclaimed" country since July 1, 1891, and included
copyright in a treaty with Colombia (1908).

{Sidenote: Scandinavian countries}

The Scandinavian countries, Denmark, Norway and Sweden, in which last
copyright was formerly perpetual, now grant protection for life and
fifty years as the general term, or fifty years for corporate and like
works, an anonymous author having the right to the full term on printing
his name in a new edition or declaring it by registration. Photographs
are protected for five years--in Norway for fifteen years. The right to
translate into a Scandinavian language is protected for the full term;
into other languages for the full term in Norway, but in Denmark and
Sweden only for ten years from the end of the year of publication of the
original work, with an addition in Denmark that a translation published
within these ten years protects the author for the full term against
unauthorized translation into that language. No formalities are
requisite, but in Norway the printer is required, though default does
not affect copyright, to deposit a copy with the university library in
Christiania within a year of publication. Notice is required, however,
on photographs, and except in Sweden, to reserve right of musical
performance. Denmark, by two laws of 1911, requires deposit and
registration of photographs. Sweden makes the exceptions that works of
art are protected for life and ten years and that playright is for life
and thirty years, or for anonymous plays, only for five years, unless
the author meantime discloses his identity. In Denmark and Norway right
of recitation and in Sweden playright must be specifically reserved.

{Sidenote: Scandinavian foreign relations}

Denmark's domestic copyright is covered by laws of 1865, 1902, 1904,
1908 and 1911, Norway's by those of 1877, 1882, 1893, 1909 and 1910,
Sweden's by the general laws of 1897, codifying those of 1877, etc.,
respectively for literary, art and photographic works, and amendatory
acts of 1904 and 1908. All three are unionist countries. Denmark remains
under the Berne-Paris agreement, not having accepted the Berlin
convention. Norway became party to the Berlin convention by ratification
September 4, 1910, with reservations as to architectural works, in which
it adheres to article IV of the Berne convention; as to newspaper and
review articles, in which it adheres to article VII of the Berne
convention; and as to the retroactive provision, in which it adheres to
article XIV of the Berne convention. Sweden remains under the Berne
convention and the interpretative declaration of Paris, not having
accepted either the Paris additional act or the Berlin convention. Each
Scandinavian country has a special copyright treaty with the other two
(1877, 1879, 1881). Denmark has also a treaty with Austria (1907) and
Sweden with Austria (1908). Denmark has had reciprocal relations with
the United States as a "proclaimed" country since May 8, 1893, Norway
since May 25, 1905, and as to mechanical music since June 14, 1911, and
Sweden since June 1, 1911. A special law for Iceland, embodying in
general the Danish provisions, was passed in 1905, and the Danish law
may be taken as covering the other Danish colonies, as the Danish West
Indies, in lack of special legislation.

{Sidenote: Russia}

Russia early gave, in 1828-30, enlightened protection to authors,
providing for a term of life and twenty-five years, with an added ten
years under specified circumstances, and protecting an author's
copyright from seizure by his creditors and from passing from a bankrupt
publisher except on fulfillment of the author's contract. Under the
civil code of 1887, copyright was extended to life and fifty years, but
playright was only nominally protected and the protection of
translations was negatived by a decision that translations must be word
for word. The new law sanctioned March 20, 1911, is a comprehensive and
detailed code providing copyright for life and fifty years, except that
certain collections are only protected for life and twenty-five years
and periodicals for twenty-five years, photographs for ten years and
translations on notice of reservation for ten years, the right to
translate being exercised within five years from publication. Playright
is protected, but on a musical work notice of protection must be
printed. A photograph must bear notice of its purpose, date and author's
name and domicile. Protection is accorded to all works published in
Russia and works published by Russian subjects domiciled elsewhere; and
provision is made for treaties on reciprocal conditions. The law treats
also of relations between authors and publishers. Russia, though
represented at Berlin, has as yet no international relations.

{Sidenote: Finland}

Finland, formerly an independent grand duchy, protects copyright under
its law of 1880 for a general term of life and fifty years, with
exceptions as to photographs, etc., and with provisions as to
translation into the Finnish and Scandinavian languages similar to those
of Scandinavian countries. Other provisions are similar to those of
Russia. It has no exterior copyright relations.

{Sidenote: Spain}

Spain passed a general copyright code in 1879, which applied not only to
the Peninsula, but _ultramar_ to Cuba and the other colonies, and became
a model for later legislation in several Spanish-American countries,
under which code detailed regulations were promulgated in 1880. This
code is enforced through the penal code of 1870 and the civil code of
1889. Ordinances from 1893 to 1910 deal with the regulations as to
details. Spain grants copyright for life and eighty years on condition
of registration by deposit of three signed copies with the Register of
Intellectual Property in the Ministry of Agriculture, or in the
provincial centres for registration, within one year from publication.
In default of registry within the year, any one may publish the work for
ten years; and if after the ten years the author fails to register
within the ensuing (twelfth) year, the work falls into the public
domain. Protection is given for an indefinite term to works issued by
the state and, to the extent of their legal existence, those from
corporate bodies. A work assigned within the life of the author, remains
in the possession of the assignee during the full term unless there are
natural heirs (_herederos forzosos_--"forced" or inalienable heirs), in
which case the right reverts to such heirs twenty-five years after the
death of the author, on registry of such right and proof of succession
under the regulations accompanying the act. This, according to the
official Spanish print, is for the remaining fifty-five years--not, as
in a French version, for twenty-five years only. A musical work is
protected with reference to other instruments and to other forms in a
provision so broad that it is possibly applicable to mechanical music
reproductions. Writings and telegrams inserted in periodicals may be
reproduced unless this is expressly forbidden by notice at the title or
at the end of the article--a provision which implies the protection of
articles and telegrams in case of such notice of reservation. Works not
republished for twenty years fall into the public domain, except in the
case of unprinted dramatic or musical works,--unless the proprietor
shows that during such period he has kept copies on sale. The protection
of domestic law is extended by the terms of the law to citizens of
countries having reciprocal relations, without additional formalities.

{Sidenote: Spanish foreign relations}

Spain was one of the original parties to the Berne convention, accepted
the Paris acts and adopted the Berlin convention without reservation,
through ratification by the King September 5, 1910. Spain has treaties
with Portugal as well as with Belgium, France and Italy, all four made
in 1880 on the "most favored nation" basis; it has relations with the
United States under treaties of 1895, 1898 (the peace treaty), and 1902,
and as a "proclaimed" country since July 10, 1895; and has treaties also
with Colombia (1885), Costa Rica (1893), Ecuador (1900), Guatemala
(1893), Mexico (1903) and Salvador (1884), mostly on the "most favored
nation" basis, and relations under the Montevideo convention with
Argentina and Paraguay (1900).

{Sidenote: Portugal}

Portugal, under its civil code of 1867 and penal code of 1886, grants
copyright for life and fifty years to its citizens and to foreigners
whose countries grant reciprocal relations. The foreign author, to
protect a translation of his work, which protection is for ten years
only, must provide such translation within three years. Translations of
non-copyright works by a native translator are protected for thirty
years. Two copies must be deposited before publication at the Public
Library, or in the case of dramatic and musical publication in the Royal
Conservatory in Lisbon. Portugal as a republic acceded to the Berlin
convention from March 29, 1911. It has additional relations with Italy
(1906) and Spain on the "most favored nation" basis (1880); and
reciprocal relations with the United States as a "proclaimed" country
since July 20, 1893, and with Brazil (1889).

{Sidenote: Italy}

Italy grants copyright under its law of 1882,--codifying its original
law of 1865 and the dramatic law of 1875,--as promulgated by royal
decree September 19, 1882, to become effective in 1885, and its civil
code of 1889. It assures full copyright for life or forty years,
whichever the longer. After forty years from first publication or, if
the author live beyond that date, after his death, a second term of
forty years begins, in which any person, on duly declaring his
intention, may republish a work, on condition of paying five per cent
royalty to the copyright proprietor. The state may expropriate any work
after the death of an author on paying to the proprietor a compensation
named by three experts. Government and society publications are
copyright only for twenty years. An author may reserve rights of
translation for ten years. Playright is for eighty years. Three copies
of the printed work should be deposited at the prefecture of the
province within three months, in default of which, infringement previous
to deposit cannot be punished; and if deposit is not made within ten
years, the author is understood to waive his rights. With the deposit
copy a declaration of reservation of rights should be filed, for
publication in a semi-annual list in the official gazette. Notice is
required to reserve rights in periodical contributions. A manuscript
copy of an unpublished play should be submitted within three months from
first performance for _visé_, which manuscript is then returned. By the
law of 1910, as to legal deposit, three copies must be delivered to the
_Procureur du Roi_ in the district of the printing establishment for
transmission to the official libraries in Florence, Rome and the
respective province; failure to make such deposit does not affect the
copyright, but involves a fine. The laws, both of 1865 and 1882,
extended copyright to foreign works, on relations of reciprocity,
without treaty arrangements and without additional formalities.

{Sidenote: Italian foreign relations}

Italy was an original party to the Berne convention and accepted the
Paris acts, but has yet to ratify the Berlin convention. It has treaties
with Austria-Hungary (1890), Montenegro (1900), Portugal (1906),
Roumania (1906), San Marino (1897); also special treaties with Spain
(1880), France (1884), and Germany (1907), all on the "most favored
nation" basis. It has had reciprocal relations with the United States as
a "proclaimed" country since October 28, 1892, and has also treaties
with Colombia (1892), with Cuba (1903) and Mexico (1890) on the "most
favored nation" basis, and with Nicaragua (1906); and also under the
Montevideo convention, relations with Argentina and Paraguay (1900).

{Sidenote: San Marino}

San Marino, the tiny state enclosed within Italy, has pledged itself by
the copyright provisions in its treaty with Italy (1897) to protect all
works protected in Italy, by application of the Italian law.

{Sidenote: Monaco}

Monaco, under laws of 1889 and 1896, provides copyright for life and
fifty years with the peculiar provision that copyright on anonymous and
pseudonymous works extends fifty years beyond the death of the
publisher, who is reputed author. No formalities are required except
notice of reservation in respect to articles in periodicals. Monaco
acceded to the Berne convention, in 1889, accepted the Paris acts and
ratified the Berlin convention without reservation, December 19, 1910.

{Sidenote: Greece}

Greece originally provided for copyright protection under its penal code
of 1833, with a term of fifteen years subject to royal extension. By the
law of 1867 the printer of a work was required to deposit with the
National Library two copies within ten days of publication, failure
involving a fine of at least ten drachmas, but not forfeiture of
copyright; and to this requirement was added by the law of 1910 a third
copy for the Library of Parliament and a fourth for the local public
library, with authority to transmit through the post. A dramatic
copyright law of 1909 specifically covers playright, making the term
life and forty years and preventing modification of a play by an
assignee. Greece has no international relations.

{Sidenote: Montenegro}

Montenegro, though it has no specific domestic copyright law, and only
gives uncertain protection under its customary law and civil code of
1888, has treaties with France (1902) and Italy (1900). It had acceded
to the Berne convention July 1, 1893, and accepted the Paris acts, but
withdrew from the International Copyright Union April 1, 1900, "from
motives of economy."

{Sidenote: Roumania and other Balkan states}

The Balkan states are led in copyright protection by Roumania, possibly
owing to the influence of the literary queen "Carmen Sylva," which
country, under the press law of 1862 and penal code of 1864, has
protected copyright and playright, including probably translation, for
life and ten years. Written registration is required at the Ministry of
Instruction, and deposit of four copies was also required, though not on
penalty of forfeiture of copyright. A later law, of 1904, repeals the
deposit requirement. Roumania has copyright treaties with Belgium
(1910), France (1907), these on the "most favored nation" basis, Austria
(1908) and Italy (1906). Bulgaria and Servia seem to give no protection,
except that accorded in Bulgaria by its penal code of 1896, and have no
international relations.

{Sidenote: Turkey}

Turkey, which gave some protection to authors so far back as its penal
code of 1857, passed in 1910 a new copyright code providing for books,
drama and music a term of life and thirty years, in which last the
children, widow or widower, the parents and the grandchildren or their
descendants should benefit in equal shares; and for works of art,
including architecture, a term of life and eighteen years. Posthumous
works are protected from publication for the years above stated.
Copyright includes right of translation, representation and adaptation;
translations are protected, but the term extends only fifteen years
after the death of the translator. The assignment of publishing right
does not include playright unless specifically stated. Reprint of
periodical articles, unless forbidden, and extracts from books "in case
of urgency or to the end of public utility," may be made on
acknowledgment of the source. Reprint of works out of print may be
licensed by the Ministry of Public Instruction. Registration is
requisite with deposit of three copies, in the case of reproduced works,
with the Ministry of Public Instruction, at Constantinople, or in its
provincial offices on written application and a fee of a quarter of a
Turkish pound, for which a certificate is issued. An annual publication
of the copyright entries is provided for. The law is not in terms
confined to Turkish subjects, but it may by the nature of Turkish
legislation apply only within the Turkish Empire, though there seems to
be hope that Turkey may adhere to the Berlin convention. Turkey is
otherwise without international relations.

{Sidenote: Japan}

Japan, the only oriental power which is a unionist country, adopted a
general copyright code in 1899 (March 3, as applied by ordinances of
June 27 and 28), modifying a law of 1877, and in the same year (July 15)
ratified the Berne-Paris agreements and became a member of the
International Copyright Union. Amendatory acts were adopted in 1910, on
June 14-15, broadening the scope to include architecture and providing
as to details of registration. Under domestic legislation first
publication in Japan is the only requisite for copyright, but
registration must be made in the Ministry of the Interior before action
for infringement can be brought, and by disclosure of name to obtain the
full term for anonymous and pseudonymous works. Registrations are
printed in the official gazette. Protection is for life and thirty
years, or thirty years for anonymous, posthumous and corporate works.
The right of translation is protected for ten years, and translations
are protected for the full term; photographs for ten years only. Titles
are protected in copyrighted works, but not general titles. Periodical
contributions must be protected by notice. Japan accepted the convention
of Berlin with reservations as to the exclusive right of translation, in
which it adheres to Article V of the Berne convention as revised at
Paris, and as to the public performance of musical works, in which it
adheres to Article IX of the Berne convention. Japan has treaties with
China (1903) and with the United States (November 10, 1905, "proclaimed"
May 17, 1906), which, however, excepts translations, and also special
treaties of August 11, 1908, covering Japanese protectorates in Korea
and China.

{Sidenote: Korea}

Korea was formerly without copyright provisions, except as given by the
above-named treaty and similar British provisions as to the consular
court at Seoul, but since it has become practically a Japanese
possession, it has been included by Japanese ordinance of 1908 under
Japanese copyright law.

{Sidenote: China}

China promulgated, December 18, 1910, its first domestic copyright
provisions, establishing a term of life and thirty years, on condition
of registration by deposit of two copies at the Ministry of the Interior
or corresponding provincial office, with a fee of five dollars. The
protection does not include the exclusive right to translate foreign
works into the Chinese language, although individual translations may be
protected. Photographs, unless included in writings, are protected only
for ten years from date of registration. These provisions require
approval to be made effective. China has a treaty with Japan (1903) and
one of like date (October 8, 1903) with the United States, effective
from January 13, 1904, protecting for ten years books, maps, prints, or
engravings, "especially prepared for the use and education of the
Chinese people" or "translation into Chinese of any book," but Chinese
subjects are to have liberty to make "original translations into
Chinese," so that the treaty affords little protection. By treaty with
Japan (August 11, 1908) Japan's copyright protection is extended where
it has extraterritorial jurisdiction, as in Canton and other places in
China. By British Orders in Council of 1899, 1907, copyright protection
against infringement by a British subject may be afforded by the
consular court at Shanghai to foreign as well as British suitors under
specified conditions.

{Sidenote: Siam}

Siam passed a literary copyright law in 1901, giving identical rights
with those in any other property for life and seven years, or for
forty-two years, whichever the longer, on the conditions of printing and
publication within the country, registration within a year and deposit
of four copies. Siam has no treaty relations, but works printed and
first published there possibly would have the benefit of the law.
British copyright protection is also extended through British
consulates.

{Sidenote: Asia otherwise}

Persia and other native-governed countries seem to have no copyright
protection, although Persia was represented at the Berlin conference.
Copyright provisions in British India, Ceylon and the other Asian
colonies is covered in the preceding chapter on the British dominions.
The Dutch East Indies have copyright protection under Dutch law, and
Indo-China under French law. The Philippine Islands, like the Sandwich
Islands (Hawaii), have copyright protection under United States law.

{Sidenote: Tunis, etc.}

Tunis, a protectorate of France but not a French colony, long the only
unionist country in Africa, has domestic protection under its law of
1889, following in general that of France, with a term of life and fifty
years. It was one of the original parties, as a separate power, to the
treaty of Berne, accepted the Paris acts and ratified the Berlin
convention with reservation, September 30, 1910, like France, as to
works of applied design, in which it adheres to the stipulations of the
previous convention; it has no other foreign relations. Algiers, a
French colony, is under French law and international relations. Morocco
and other native states seem to be without copyright protection.

{Sidenote: Egypt}

Egypt, under the protectorate of Great Britain but not a British
possession technically, is without domestic legislation, except that its
penal code of 1884-89 forbids piracy, and it is not included under
British relations. But under a crude sort of customary law and this
penal code, the courts enforce rights of foreigners as well as of
natives by the protection of their works for an indefinite term. The
rights of French citizens in plays and music have been enforced through
the French consular court, and in recent years the mixed courts at Cairo
and the Court of Appeal have exercised copyright jurisdiction, "under
the principles of natural justice and the laws of equity." In the
leading case of the Société des gens de lettres _v._ Egyptian Gazette,
in 1889, the Court of Appeal laid down the principle that "copyright is
a veritable right of property founded on labor," and on this ground has
upheld the right of literary, dramatic and musical authors and of
artists to prevent reproduction.

{Sidenote: Liberia}

Liberia seems to have no domestic copyright law recorded, and probably
protection, national and international, is under customary law without
formalities. It was represented as an independent power at the Berne
convention and signed the original convention, but never became a party
to it by ratification; it, however, adopted the Berlin convention by
ratification and is now a member of the International Copyright Union.

{Sidenote: Africa otherwise}

The Congo Free State seems to cover copyright offenses by its
extradition treaties with Belgium (1898) and France (1899) to the extent
of including in the list of offenses fraudulent application to any art
object or work of literature or music, of the name of an author, or any
distinctive sign adopted by him.

Copyright provision in South Africa, Sierra Leone and other British
colonies is covered in the preceding chapter on the British dominions.

{Sidenote: Latin America}

In Latin America provision for copyright protection had generally been
made by the several states, for various terms, in some cases in
perpetuity, previous to a movement for international relationship which
began with the Montevideo convention of 1889, for South American states
only, reached a further step in the convention of Mexico City, 1902, was
not substantially advanced by the amendatory treaty proposed at Rio de
Janeiro, 1906, which never became practically operative anywhere, and
culminated in the Buenos Aires convention of 1910, which was ratified by
the United States Senate February 16, 1911, but has yet to be ratified
by the Latin countries. Five South American states are bound together
under the Montevideo convention as ratified by Argentina (1894), Bolivia
(1903), Paraguay (1889), Peru (1889), and Uruguay (1892).

The United States has relations with Mexico (1896), Costa Rica (1899),
Cuba (1903), Chile (1896), and by ratification in 1908 of the Mexico
convention of 1902, with Costa Rica, Guatemala, Honduras, Nicaragua,
Salvador and possibly Dominican Republic, and will come into relations
under the Buenos Aires convention of 1910, with any power ratifying that
convention.

{Sidenote: Mexico}

Mexico, under the guarantees of property in its constitution of 1857,
and the specific and elaborate copyright provisions of its civil code of
1871, as modified by that of 1884, grants copyright in perpetuity and
playright for life and thirty years as the general term, with
complicated modifications and exceptions. In the case of anonymous and
pseudonymous works, rights in perpetuity are to the publisher and his
successors, pending disclosure of the author, who must record his name
in a sealed envelope. The right of translation is protected in
perpetuity except for works of non-residents published abroad, then
limited to ten years. Corporate works are protected for twenty-five and
official publications for ten years only. Registration is required
through application to the Minister of Public Education and deposit of
two copies is obligatory, one in the National Library and one in the
Public Archives. A third copy is usually expected for the Library of the
Ministry. The right to copyright holds for ten years from publication.
Reservation is required of right of translation and of other specified
rights, by notice on the printed work. Protection is conditioned on
residence, reciprocity or first publication within Mexico. Private
letters may not be published without consent of both correspondents or
their heirs, except for proof of right or in the public interest, or for
the progress of science. Mexico does not seem to be a party to any
convention, not even that of Mexico City, but has had reciprocal
relations with the United States as a "proclaimed" country since
February 27, 1896, and has treaties with the Dominican Republic (1890)
and Ecuador (1888), and with Belgium (1895), France (1886), Italy
(1890), and Spain (1903), all on the "most favored nation" basis. To
obtain Mexican copyright, it seems necessary to execute a power of
attorney, validated by a Mexican consul, to a representative in Mexico
City for the registration and deposit at the Ministry.

{Sidenote: Central American states: Costa Rica}

{Sidenote: Guatemala}

{Sidenote: Honduras}

{Sidenote: Nicaragua}

{Sidenote: Salvador}

Of the five nations of Central America, Costa Rica, under penal and
civil codes of 1880 and 1888 and a copyright law of 1896, grants
copyright, including playright, for life and fifty years, with
provisions for return to heirs after twenty years and other variations
after the Spanish model, on registration and deposit within a year of
three copies of a printed work at the office of Public Libraries, on
condition of residence or reciprocity. Guatemala, under a decree of
1879, grants copyright for literary works in perpetuity on registration
and deposit of four copies at the Ministry of Public Education to
"inhabitants of the Republic,"--with the curious provision that an
assignee cannot prevent republication with "essential modifications" by
the author. Right of translation must be reserved by notice. A sealed
envelope with name of author must accompany an anonymous book. Honduras,
under its constitution of 1894, has provisions in its civil and penal
codes of 1898 guaranteeing to an author of a literary, scientific or
artistic work the general property rights, pending passage of a
copyright law and punishing fraud by "minor banishment." Nicaragua,
under its civil code of 1904, grants copyright in perpetuity on
registration and deposit of six copies with the Ministry of Agriculture.
Right of translation must be reserved by notice. Salvador, under its
constitution of 1886 and law of 1900, grants copyright on works
published in Salvador for life and twenty-five years, or for corporate
works fifty years from publication on deposit of one copy with the
Minister of Agriculture before publication, with the exceptional
provision that if the heirs renounce their rights or fail to make use of
them within a year from the author's death, the work falls into the
public domain; the translator of a Latin or Greek work is protected as
an author, and the government may grant five-year licenses for the
reprint with author's permission of "interesting works," presumably
those published elsewhere.

{Sidenote: Interstate and international relations}

In 1894-95, and again in 1897-1901, interstate treaties, incidentally
covering copyright, were negotiated; but interstate and international
relations are now covered by the participation of the five nations, as
well as the United States and the Dominican Republic, in the Mexico
convention of 1902 and by the treaty of peace made by these five Central
American states at Washington, December 20, 1907. There is some question
under the treaty of 1907 whether protection is assured in each state to
others than residents, but probably all citizens of the five states are
protected throughout all. To secure protection under the convention of
1902, an American citizen should apply for an additional certificate
from the U. S. Copyright Office for each country, which after validation
by the State Department is sent with one deposit copy for each country
to the respective American legations, through which official
acknowledgment will be returned. Costa Rica has had reciprocal relations
with the United States as a "proclaimed" country since October 19, 1899,
and has treaties with France (1896) and Spain (1893); Guatemala with
France (1895) and Spain (1893), the latter on the "most favored nation"
basis; Nicaragua with Italy (1906); and Salvador with France (1880) and
Spain (1884).

{Sidenote: Panama}

Panama grants copyright under the constitution of 1904, which adopted
and made part of Panamanian law the Colombian copyright law of 1886,
which is summarized in the paragraph on Colombia. The Canal Zone is
under United States law through a War Department order of 1907.

{Sidenote: Cuba}

Cuba, which as a Spanish colony came under the Spanish act of 1879, has
domestic protection under this act as applied by four military
ordinances, 1900-1902, during the United States protectorate, and
continued under its insular government. In the third ordinance, of June
13, 1901, it was provided that existing copyrights under the Spanish law
of 1879 should be valid during their term, and also that copyright as
well as patents granted by the United States shall have insular
protection on deposit of a copy of the certificate. Registration is made
at the Registry in the Department of State within one year of
publication, accompanied, if a foreign work, by certificate of copyright
in the country of origin, and deposit should be made of three copies for
preservation in the National Library, the University and the Public
Archives. On these conditions, under the military ordinance of 1900,
authors of foreign scientific, artistic and literary works or their
agents or representatives enjoy protection in the case of new works.
Regulations of 1909 prescribe the forms of application for domestic and
for foreign works. To claim Cuban copyright, an American should obtain
an attested copy of the copyright certificate and transmit this, with a
power of attorney in Spanish validated by a Cuban consul, and three
deposit copies, to a representative in Havana, who must deposit the
certificate with an attested Spanish translation and the three copies at
the Registry. Copyrights by Spanish subjects previous to the treaty of
peace with the United States, ratified in 1899, remain valid by virtue
of a specific article in the treaty. Cuba has been in reciprocal
relations with the United States as a "proclaimed" country since
November 17, 1903, and has a treaty with Italy (1903) on the "most
favored nation" basis. It is reputed to have ratified the Pan American
convention of 1902, but possibly only the industrial treaty.

{Sidenote: Haiti}

Haiti, which gave copyright protection as early as 1835, adopted in 1885
a copyright law with some unusual features. An author holds exclusive
right during life; the widow through her life; the children for twenty
years further, or other heirs, if there are no children surviving, for
ten years. Unauthorized reprints are confiscated on the complaint of the
proprietor of the copyright; and the author recovers from the reprinter
the price of a thousand, or from a bookseller of two hundred copies,
reckoned at the retail price of the author's edition. Deposit is
required of five copies within twelve months from publication at the
Department of the Interior. Haiti has the unique distinction in Latin
America of being a unionist country; it was originally a party to the
Berne convention, accepted the Paris acts and adopted the Berlin
convention without reservation. It has no relations with the United
States and no treaties.

{Sidenote: Dominican Republic}

The Dominican Republic provides copyright protection under its
constitution of 1896, has a treaty with Mexico (1890) on the "most
favored nation" basis, and ratified the Pan American convention (though
possibly only the industrial treaty) of 1902, June 15, 1907.

{Sidenote: West Indian Colonies}

Jamaica and the other British islands and colonies along the Atlantic
and Caribbean seas have copyright protection under imperial and to some
extent local laws, as already noted; Porto Rico is under the provisions
of United States law and the Danish and Dutch West Indian colonies are
under the respective laws of their nations.

{Sidenote: Brazil}

Brazil, under the constitution of 1891 and the law of 1898 and
regulations of 1901, grants copyright for the general term, inclusive of
photographs, of fifty years from the first of January of the year of
publication, with a term of ten years for the right of translation and
playright. Posthumous works are protected within fifty years from the
death of the author. Assignments are valid only for thirty years, after
which copyright reverts to the author. Written application for
registration is requisite at the National Library, and deposit of one
copy of a printed book or play must be made there within two years.
Reservation of royalty for playright must be made on a printed work.
Protection is confined to a native or resident or a Portuguese author of
a work written in Portuguese--the latter in accordance with a treaty of
reciprocity with Portugal (1889), the only treaty.

{Sidenote: Argentina}

Argentina, which under its constitution of 1853 and civil code of 1869
protected an author's productions as general property, adopted in
September, 1910, a copyright law, as an application of common law,
providing for a term of life and ten years, or in the case of posthumous
works twenty years from publication. Protection is comprehensive of all
classes of intellectual property, and extends to all forms of use
without special reservation. By Presidential decree of February 4, 1911,
a Section of Library deposit was established as a division of the
National Library. Registration is required by deposit of two printed
copies or of an identifying reproduction within fifteen days from
publication for works published in the capital, or thirty days in the
provinces, this including foreign works published within the country,
publication meaning the offering for sale therein. The law specifically
applies to authors of other countries with which Argentina has
international relations, deposit in Buenos Aires being then not required
where the formalities of the country of origin have been fulfilled.
Argentina's international relations are dependent chiefly on the
Montevideo convention of 1889, as ratified by Argentina with respect to
Paraguay, Peru and Uruguay in 1894, Bolivia in 1903, and with respect to
Belgium in 1903, France in 1896, Italy and Spain in 1900.

{Sidenote: Paraguay and Uruguay}

Paraguay and Uruguay, like Argentina, long protected intellectual
property as general property. Paraguay's constitution of 1870 secures
exclusive property to an author, and a new penal code, promulgated in
1910, assures copyright on all classes of intellectual property, on
registration in the public registries with prescribed fees, and punishes
piracy by fine of double the profit and imprisonment. Uruguay in its
civil code of 1868 declared that the productions of talent or intellect
are the property of their authors, to be regulated by special law, but
no such law has been passed. Both countries have relations with the
other South American states parties to the Montevideo convention of
1889; Paraguay has also the same relations as Argentina with the
European countries above cited. The statement that Paraguay is a party
to the Mexico City convention of 1902 seems a misapprehension arising
from the fact that her representative signed _ad referendum_.

{Sidenote: Chile}

Chile, under the constitution of 1833 and law of 1834 and its civil code
of 1855 and penal code of 1874, protects copyright including playright
for a general term of life and five years thereafter, which may be
extended an additional five years, except for playright, by action of
the government, corporate works for forty and posthumous works for ten
years. Deposit of three copies is required at the National Library in
Santiago. Protection is extended to foreign works [first?] published in
Chile; a Chilean-made edition of a work already published abroad may
have protection for ten years. Chile has reciprocal relations with the
United States as a "proclaimed" country since May 25, 1896; by a
provision in the treaty respecting parcels post, piratical copies of
works copyright in the country of destination are to be excluded. Chile
ratified only the ineffective Rio convention of 1906.

{Sidenote: Peru}

Peru, under its law of 1849 and the constitution of 1860 and penal code,
grants copyright including playright for life and twenty years
thereafter. Anonymous and pseudonymous works may be protected for the
full term by deposit of the true name in a sealed envelope. Posthumous
works are protected for thirty years. Deposit is required of one copy in
the public library and one copy in the department Prefecture. Protection
is probably confined to an inhabitant of Peru, but Peru has reciprocal
relations under the Montevideo convention as ratified October 25, 1889,
with Argentina, Bolivia, Paraguay and Uruguay.

{Sidenote: Bolivia}

Bolivia, which protected intellectual property by its penal code of
1834, and later by a copyright law of 1879, adopted a brief copyright
code, including playright, in 1909, providing a general term of life and
thirty years, with the peculiar provision that the publisher of a work
of unrecognized authorship hitherto unpublished may have protection for
twenty years. Registration is required at the Ministry of Public
Education and deposit of one copy of printed works must be made within
one year of publication in the public libraries, in default of which the
work falls into the public domain. Bolivia has reciprocal relations
under the Montevideo convention as ratified November 5, 1903, with
Argentina, Paraguay, Peru and Uruguay, and also international
arrangements with France (1887).

{Sidenote: Ecuador}

Ecuador, under the constitution of 1884 and law of 1887, grants
copyright for life and fifty years, and playright for life and
twenty-five years. Anonymous and pseudonymous works are protected fifty
years beyond the death of the publisher, unless the author meantime
substitutes his name; posthumous works for twenty-five years. There are
special provisions for terms of fifty years in the case of translations,
adaptations, compilations, etc., and for twenty-five years for editions
of works of undefined authorship. Registration is required with notice
of reservation of playright within six months from publication or three
months from performance of an unpublished play. Three copies of a
printed work must be deposited with the registrar for the use of the
Minister of Public Education, the National Library and the provincial
library. Titles of periodicals are specified as copyrightable.
Assignment must be registered to become operative. Protection is
seemingly confined to a citizen of Ecuador, but it is expressly provided
that a foreign author may assign right of translation or playright to a
citizen of Ecuador, who may then prevent infringement. Ecuador has
reciprocal relations with Mexico (1888), as also with France (1898,
1905) and Spain (1900), all on the "most favored nation" basis.

{Sidenote: Colombia}

Colombia, under the Constitution and law of 1886, and the civil code of
1873 and penal code of 1890, protects copyright, including playright,
for life and eighty years, and for the legal existence of a corporate
body, with the provision as in Spain respecting natural heirs.
Registration is required within a year from publication or performance,
at the Ministry of Public Education, with deposit of three copies, one
for the Ministry and two for the National Library. If a work is not
registered within the year, it falls into the public domain for ten
years, but can thereafter be protected by registration within the
succeeding year. Non-Colombian authors seem not to enjoy protection of
the right of translation for a work printed in a country of foreign
language. Colombia has treaties with Spain (1885) on the "most favored
nation" basis, Italy (1892) and Switzerland (1908).

{Sidenote: Venezuela}

Venezuela, under the law of 1894 and penal code of 1897, protects
copyright including playright in perpetuity, the publisher being
considered the author in the case of anonymous and pseudonymous works
pending legal proof of the identity of the author. In posthumous works
protection is in perpetuity to the heirs or assigns. The right is
secured by request to the district governor or state president for the
issue of a patent with registry of title and verbal oath that the work
has not been previously published within Venezuela or elsewhere; the
patent certificate must be printed on the back of the title-page, and
must be published at least four times in the official gazette. Deposit
must be made of six copies at the Registry, two copies going to the
Minister of Agriculture for the National Library. Protection is not
specifically confined to Venezuelans, and seems to depend on first
publication, but assignment to a citizen of Venezuela may be desirable.
Venezuela has no foreign relations.



XXII

BUSINESS RELATIONS OF COPYRIGHT: AUTHOR AND PUBLISHER


{Sidenote: Copyrights in their business relations}

Business relations, founded on copyright, are chiefly those between
author and publisher. These relations involve questions, not so much of
copyright law in itself, as of the law of contract and other statutory
and common law provisions. There has been more or less desire on the
part of authors to include business relations within copyright statutes,
and in fact the recommendations of the American (Authors) Copyright
League to the initial copyright conference of 1905 covered several
points of business law, as for instance the right of an author to
recover possession of his work from the publisher in case the publisher
failed to keep it in print, or the right to prevent assignment of
publication rights to a publisher unsatisfactory to the author. It was,
however, determined, both in the conferences and by the Congressional
Committees, to omit as far as practicable from the copyright law all
questions of business relationship, and to leave these to specific
contracts between author and publisher or to the general provisions of
law. The law, whether as to copyright or other matters, should afford a
basis of certainty for business, but it cannot wisely interfere with
freedom of contract between the parties to a business transaction.

{Sidenote: The German publishing law of 1901}

{Sidenote: Editions}

{Sidenote: Alterations}

American and English statutes accordingly make no special regulation of
the calling of publisher. Provision is, however, made in some
continental countries for the regulation of publishing and publishers,
as in Germany, where a law of June 19, 1901, passed coincidently with
the general copyright code, covers this field in remarkable detail. It
provides that the author, during the continuance of the publishing
contract within the copyright period, may not reproduce or distribute
the work otherwise than through the publisher, except in translation,
dramatization (or if a play, novelization) or elaboration of a musical
work which is not merely a transposition or arrangement. The author is
privileged to include his work in a collected edition twenty years after
publication, or an article from a collective work after one year; and
the publisher may not republish in such form under the contract. Unless
otherwise specified, the publisher is entitled to print only one
edition, if undefined one thousand copies, in addition to extra copies
for replacing damaged copies and not more than five per cent free
copies; destroyed copies may be replaced on notice to author.
Opportunity for revision must be afforded to the author in new editions.
Alterations are permitted to the author before reproduction and at his
expense during the progress of the work, but he cannot be charged for
alterations necessitated by new circumstances. The publisher may not
make alterations or abbreviation of text or title, except those to which
the author cannot fairly refuse consent.

{Sidenote: Issuance of work}

The publisher must issue the work in suitable form in accordance with
the customs of the trade and the character of the book, and immediately
after receipt of the complete work or completed separate part. The
publisher must take measures to keep the book in stock. He is not bound
to produce a new edition, but if on request from the author he fails to
do so, the publishing right reverts to the author. The publisher may
cancel the contract, if the purpose of a work no longer exists, on
payment of remuneration to the author. Proof for correction must be
furnished to the author.

{Sidenote: Price and remuneration}

The publisher may fix and reasonably reduce the price, but can raise it
only with consent of the author. If remuneration is not specified, an
equitable payment is required, and the remuneration is due on the
delivery or on the appearance of the work, or if determined by sale,
then yearly, with opportunity to the author to verify the account from
the publisher's books. The author is entitled to free copies to the
extent of one per cent of the edition, but not less than five nor more
than fifteen, and to additional copies at the lowest trade price. The
author is entitled to return of his manuscript after reproduction, if
stipulated at the beginning.

{Sidenote: Assignment}

The publisher may assign, in the absence of agreement, but not for
separate works; though for this last, consent cannot unreasonably be
withheld and may be presumed if the author does not reply within two
months to a demand; and the assignee becomes, jointly with the original
publisher, liable to the author for future performance of the contract.
When a contract is completed by the issue of specified editions or
copies, the publisher is bound to notify the author, and if the contract
is for a definite time, the publisher is not entitled to distribute
remaining copies after that time. In case of delay in the contracted
delivery of the work, the publisher, after a reasonable extension of
time, may decline the work, unless delay involves only insignificant
loss; and in case the work is not of stipulated quality, the publisher
may also cancel the contract or require damages for non-fulfillment. The
author has analogous rights as against the publisher.

{Sidenote: Accidental destruction}

{Sidenote: Delivery}

If the work is accidentally destroyed after delivery to the publisher,
the author is entitled to remuneration, but the contract terminates; but
the author must, if practicable, rewrite it for additional remuneration
or may reproduce it gratuitously and require publication. Like rights
may be enforced by either party in case of destruction for which the
other is responsible. Delivery is implied when the publisher is placed
in position to accept the work. If the author dies after delivery of
part of his work, the publisher may maintain his rights in the part
delivered on specified notice to heirs; and if the author is absolutely
prevented from completing his work, the publisher has like right to the
portion already prepared. The author may withdraw from his contract
before reproduction of his work or a new edition is begun, if justified
by unforeseen circumstances, on remuneration of publisher's expenses;
but if he publishes elsewhere within a year, he must also pay damages
for non-fulfillment of contract to the original publisher, unless the
latter has declined to resume the contract.

{Sidenote: Bankruptcy of publisher}

{Sidenote: Non-copyright work}

The relations of a publisher in case of bankruptcy are specifically
treated, and the regulations of the civil code and general legal
principles are specifically applied to cancellation of publishing
contracts. On a non-copyright work, an author must not conceal from the
publisher that he cannot transfer exclusive right of publication; but
the author must act toward the publisher as though the work were
copyrighted, at least until six months after publication.

{Sidenote: Articles in periodicals}

The law is made applicable to articles in periodicals or portions of
collective works. An article in a newspaper is at the disposal of the
author immediately after publication; an article in other periodicals
after one year, unless exclusive continuing right has been sold to the
publisher. A publisher is free to make usual alterations in an unsigned
article. The author of an article may cancel his contract and obtain
remuneration in case it is not published within a year after delivery,
but damages can be claimed only in case a time of publication has been
named by the publisher. The author of a newspaper article has no claim
to free copies or special terms. In the case of a work planned by the
publisher, or a collaborative, supplementary or collective work
commissioned by the publisher, the publisher is not bound to reproduce
and distribute the work. The law is made applicable in case the contract
with the publisher is made by another than the author. Appeal is
authorized to the Supreme Court of the Empire.

It is impracticable to cite all the details of this extraordinarily
detailed law, but the provisions summarized afford a remarkable
conspectus of German practice on business questions possibly arising
between author and publisher, useful in relation to American and English
practice.

{Sidenote: The publisher as merchant}

{Sidenote: "Outright" transfer}

The publisher is the merchant for the author, and the remuneration which
he can pay to the author is limited by the price and sale which he can
obtain from the book-buying public. The relation between author and
publisher should be, as previously emphasized, most fully, clearly and
specifically set forth in the initial contract. "Agreements between
author and publishers," said Vice Chancellor Page Wood in 1857 in Reade
_v._ Bentley, "assume a variety of forms. Some are so clear and explicit
that no doubt can arise upon them. Thus, where an author assigns his
copyright, the transaction is one which every person understands, and
which leaves no room for uncertainty as to the rights of the parties."
The work may indeed be transferred "outright" without written contract,
by the delivery of the manuscript and payment of a bargained sum, in
which case the publisher becomes the proprietor and may take out the
copyright in his own name or that of the author, can assign the work and
treat it entirely as though his own, except that he cannot alter it to
the detriment of the author's reputation. But even in "outright" sale, a
specific contract is desirable and is indeed necessary if the author is
to agree with the publisher to apply for renewal and include the added
period in the term.

{Sidenote: "Joint adventure"}

More usually, the contract between author and publisher is on the basis
of a specified royalty--usual in America, or "half profits,"--more
common in England, in which case the relation is not that of partnership
but of a "joint adventure" terminable on notice unless it is made for a
stated time, or for one or more editions, of a specified number of
copies, or under other limiting conditions. In such case the expenses of
publication may be borne by the publisher, or the author may pay for the
plates or for the edition, and receive correspondingly larger return.
Unless there is actual or constructive partnership, the publisher, and
not the author, is liable for paper, printing, and like accounts. Or the
publisher may be simply the agent of the author in manufacturing his
book and selling for a stated commission. A contract of publication
usually implies exclusive right, but an author may contract with several
publishers under a license agreement; and on the compulsory license
system, often miscalled the "royalty plan," he must permit any
publisher, who will pay him the license royalty, to issue the work.

{Sidenote: Risk and profit}

It is by means of the profit on successful books that the publisher is
able to take risks with new books and new authors. It has been said that
of five books, three fail, one covers its cost, the fifth must pay a
profit to cover the rest. The element of risk in the book business is,
in fact, very large; if the author complains that his successful book
ought not to pay for others' unsuccessful books, he can get over the
difficulty by taking the risk himself.

{Sidenote: Long price and "net" price}

{Sidenote: Equities}

The publisher usually sells to the public through the retail trade at a
stated retail price, which may be either long price, in which case the
high price and large trade discount permit a discount to the public, or
"net" price, a lower price with less discount, which the bookseller is
expected to maintain. The practice of issuing books at "net" price is
growing, in the belief that through this policy larger sales are made
and the publisher's gains and the author's royalties fairly balance. On
the average, the publisher probably gets less per volume than the
author, and the system is essentially on an equitable basis. The
publisher's larger returns come from the fact that he handles more books
than any one author writes. The publisher has usually, in bargaining
with the author, the advantage of larger experience and superior
business ability, and of the fact that the author seeks him rather than
he the author; but no law can better the author in these respects. As a
matter of practice, the better publishing houses treat with new authors
on the same basis as with old, through a standard form of contract.

{Sidenote: The literary agent}

The author sometimes employs the "literary agent" as an intermediary in
finding a publisher, especially for a first book, and in making
arrangements with the publisher, for which the agent expects a stated
payment or a proportion of the author's returns. The advantages of such
intermediaries are offset by many disadvantages, and the best publishing
houses treat an author as liberally and fairly in direct as through
intermediate relations. In any event, the contract should be made and
signed directly between author and publisher, as a third-party contract,
or a double contract between author and agent and agent and publisher,
presents serious complication in the event of future differences. The
agent should not be given any lien on future works by the author. The
literary agent cannot accept conditions or make sale beyond the
authority given him by the author, and an innocent publisher may be held
responsible for acts beyond that authority, as in the English case of
Heinemann _v._ Smart Set Pub. Co., in 1909, where the defendants had
bought "serial rights" with leave to condense into one number, which the
agent had no authority to grant.

{Sidenote: Usual American contract}

In the publishing contract usual in America, the author "grants and
assigns" to the publishers the stated work, undertaking either to
copyright it himself or authorizing the publishers to enter copyright in
their name, or as his attorneys in his name. The contract usually
includes all translations, abridgments, selections, dramatizations,
etc., or specifically reserves those to the author, the publishers in
the first case agreeing to share profits or otherwise remunerate the
author on such special forms. The author is expected to guarantee that
he is sole owner of the work and has full power to make the grant, that
the work is not a violation of any other copyright and that it is free
from scandalous or libelous matter.

{Sidenote: Publishers' obligations}

The publishers undertake to publish the work in such style as they deem
best suited to its sale, at their own expense, unless the author
contracts to pay for the plates or for other publishing costs, and
usually agree to account for sales semi-yearly or yearly and to make
payments within four months thereafter. The royalty is usually based on
the trade-list (retail) price, on the cloth or ordinary binding, or the
style of binding in which the largest number of copies shall have been
sold. It is frequently stipulated that on paper-bound copies, or
editions or copies for schools or subscription sale, or a foreign
market, or otherwise sold at a reduced price, the royalty shall be
reduced, and that on press and other free copies no royalty shall be
paid. When an author pays the cost of the edition or pays for making the
plates, he may contract to pay a commission to the publisher and obtain
the balance for himself, or he may contract for a larger percentage of
return to him than the usual royalty percentage. The publishers are
usually authorized to permit the printing of selections and to arrange
for translations, etc., subject to the arrangement indicated above. The
author is expected to pay for alterations either in full or above a
stated sum, as fifty dollars, and to provide any index or like equipment
if required.

{Sidenote: Reversion of contract}

Insurance is not usually required from the publishers, but in case of
fire or loss, the publishers have the option of reproducing the work,
and if they decline to do so, the contract usually provides for
reconveyance of the copyright to the author and the termination of the
agreement after the sale of copies remaining on hand. A publishing
contract sometimes provides that after a specified time from date of
publication, as two or five years, if the publishers consider that the
public demand does not justify continuing publication, or for other
reasons, they may offer to surrender their publishing rights on
compensation for the plates, as at half cost, and remaining copies, as
at cost, and if the author does not elect to accept this offer, then the
publishers may sell copies on hand free from royalty and terminate the
agreement, the copyright reverting to the author. The publishers are
usually authorized, in their discretion, to protect the copyright by
legal proceedings at their expense or at joint expense of publishers and
author.

{Sidenote: Scope of contract}

The contract may be for the full term of copyright, with or without
obligation on the part of the author to provide for renewal, or for a
stated number of years and thereafter until terminated on stated notice,
or it may be for a specified number of editions or copies. It is often
stipulated that on discontinuance, the author shall have the right to
take over the plates at cost or half cost and remaining copies at cost,
in default of which the publishers may sell copies free of royalty,--but
not continue to use the plates. If the book contains illustrations not
made originally for the work, the contract may provide that electrotypes
of them shall be transferred to the author for use solely in connection
with the work in case of reversion of the copyright to him. The contract
is usually drawn subject to assignment by either party, but only as a
whole; but the author may require that the work shall not be
transferred, to another publisher or otherwise, without his consent.

{Sidenote: Other works of author}

The contract may also reserve to the author a right to discontinue the
agreement in case the publishers elect not to publish other works, which
he may offer to them, or it may bind the author to offer subsequent
works to the same publishers. This keeps in view the ultimate
publication of a uniform collected edition of the author's works, which
may also be covered by a provision giving the author right to include
his work in a collected edition after a stated time.

{Sidenote: Standard contract}

The above summary gives the pith of a standard form of contract which
has been adopted, in more or less detail, by many American publishers,
and is usually kept in printed form by them. Owing to the careful
specifications in the American type of contract, there are fewer cases
in the American than in the English court records referring to the
relation between authors and publishers; and the English "half profits"
custom naturally leaves many more open questions of law and equity.

{Sidenote: Serial rights}

Where there are serial rights to be considered, as in the case of a
novel, the agreement between author and publisher should be very clear.
If an author contracts for a serial with periodical publishers who are
also book publishers, that contract should state whether rights for book
publication are involved or whether the author is left free to arrange
for book publication independently. Conversely, where an author
contracts for book publication, the contract should be explicit as to
whether the author or the publishers shall exercise or arrange for
serial publication, either before or after book publication.

{Sidenote: Republication of periodical articles}

Where an author furnishes an article or series of articles for a
periodical, it should be made clear, by letter or contract, whether the
periodical publisher also obtains the right to republish such articles
in other shape or whether such right reverts to the author, and if so,
how soon after publication of the periodical.

{Sidenote: Foreign markets}

In these days of increasing international relations, it is important
that the author should have a clear understanding as to whether he
retains the rights in other markets, whether in English speaking or
foreign countries; or conveys them to the publishers as within the
agreement, but to be separately accounted for; or assigns them as an
integral part of the transaction. As between America and England, many
publishing firms have branch houses or representatives in the other
country or are in special relations with an independent firm therein. If
the English market is conveyed, there should be a clear-cut
understanding as to whether this includes the Canadian, Australian and
South African rights. It is usual that a lower royalty is paid to the
author on sheets sold for another than the home market.

{Sidenote: Contract to do work}

The contract of an author with a publisher that he _will_ write a
specified book or work, is not usually enforceable by the courts through
specific performance, for the simple reason that a court has no means of
compelling an author to use his brain for a certain purpose, and the
remedy against the author in this event is rather a suit for loss by
failure to perform the contract, which loss is difficult to prove. If
any remedy is to be provided, it should be stated in the contract as a
specified penalty to be paid by the author,--a provision seldom included
in publishing contracts. That an author may be held liable for a breach
of contract if he declined without good cause to complete a work already
partly delivered, was indicated in the early English case of Gale _v._
Leckie in 1817. An agreement to write a book may stand as an equitable
assignment on the completion of the book, as was held in Ward, Lock &
Co. _v._ Long, in 1906 in the Chancery Division by Justice Kekewich.

{Sidenote: Contract not to write}

An author who has contracted not to write on a stated subject or for
other publishers, may be enjoined from such act. This was decided by
early English precedents, as when in the case of Morris _v._ Colman, in
1812, Lord Chancellor Eldon held that Colman, in virtue of his contract
to write plays for the Haymarket Theatre and for no other, could be
restrained from furnishing plays to another theatre, though he could not
be compelled to write plays; the same judge, in Clarke _v._ Price, held
in 1819 that he could neither compel Price to continue to furnish
Exchequer reports to the plaintiff publisher nor restrain him from
furnishing such reports to another publisher, because the contract
contained no specific provision to the latter effect. It is probable
that the undertaking of an author not to prejudice the sale of his book
by writing another of like subject, though under a different title, may
be enforced even against a succeeding publisher who had no knowledge of
that undertaking, as was indicated in Barfield _v._ Nicholson in 1824.
Thus publishers were granted equitable relief against an author who had
sold to other publishers modifications of an arithmetical series of
which the copyright had been sold to the plaintiffs, in Wooster _v._
Crane in the U. S. Circuit Court of Appeals, in 1906. In Brooke _v._
Chitty, however, in 1831, Lord Brougham declined to restrain Chitty from
writing a certain book, on the ground that the court could not act until
there was actual printing and publication. The publisher, _vice versa_,
cannot be restrained from publishing a rival work, even though it
competes directly with a work already published or contracted for,
unless that is distinctly forbidden in the contract with the first
author.

{Sidenote: Implied obligations}

If a publisher prints without special agreement a manuscript submitted
for approval, the courts will enforce reasonable payment; and in 1893,
in Macdonald _v._ National Review, in an English county court, it was
held that printer's proof sent by the publisher to the author, implied
acceptance for publication. That the publisher may be held responsible
for loss of a manuscript by the negligence of his employees, was held in
Stone _v._ Long, in the King's Bench Division, by Master Chitty in 1903.
An implied obligation to publish an accepted work was recognized in the
Canadian case of Le Sueur v. Morang, where the Canadian Supreme Court
affirmed in 1911 the decision that if a publisher withholds from
publication a work of which he had bought the copyright "outright," the
author might claim the work on return of the purchase money.

{Sidenote: Contract personal and mutual}

The contract between author and publisher is of a personal nature and
therefore not assignable, in the absence of specific provision, except
with consent of the other party. As it is with a particular author that
a publisher contracts for a book, so an author contracts with a
publisher of his choice and cannot be required to accept another. This
is especially true where, on a profit-sharing or royalty arrangement,
the author relies on the skill of the publisher for his market. Where E.
V. Lucas had arranged with Grant Richards to publish a work on half
profit, it was held in the Chancery Division in 1905 by Justice
Warrington in a suit against the publishers' trustee in bankruptcy, that
the contract was terminated by bankruptcy and that Mr. Lucas on fair
purchase of the remaining copies, might contract with another publisher.
There is more question when the contract is for a specified sum; and
where the copyright is assigned by outright purchase the rule would not
hold good, for the publisher then becomes the copyright proprietor. But
even when a publisher has bought a copyright "outright," he may not do
the author the wrong of printing the work in such altered shape as to
injure the author's reputation, as was held in 1832 in the English case
of Archbold _v._ Sweet, where a third edition of Archbold's legal work
printed "with very considerable additions," which the plaintiff showed
to contain gross blunders, was enjoined. But when work is done, to be
published under the name of another, the actual writer may not prevent
alteration by the employer, as was decided in Cox _v._ Cox in 1853, by
the Vice Chancellor. Such a personal contract cannot be transferred as a
bankruptcy asset, and on the bankruptcy of the publisher the rights
revert to the author, except that stock on hand may perhaps be sold to
another, who may not, however, distribute it to the disadvantage of the
author. The personal contract involves personal guarantee by each party
to the other of good faith and coöperative support, and neither party
may act to the disadvantage of the other. The author, during the
continuance of a publishing contract, must not permit the use of his
work otherwise, to the prejudice of the original publisher, and the
publisher must not sell copies to the injury of the future market of the
author.

{Sidenote: English development of this doctrine}

This general doctrine was worked out in a chain of early English cases,
the first of which was that of Sweet _v._ Cater, in 1841, where Vice
Chancellor Shadwell decided that the plaintiff publisher who had
contracted with Sir Edward Sugden to publish a tenth edition of 2500
copies of his legal work, could, until the specified copies were sold,
prevent the publishing of another edition by the defendant publisher,
despite any arrangements between the author and the latter. It was
strongly upheld by Vice Chancellor Page Wood in the case of Stevens _v._
Benning, in 1854, affirmed on appeal by the Lords Justices, and Reade
_v._ Bentley, in 1857. In the first case Forsyth contracted for the
publication of his legal work, undertaking to make future revision for
subsequent editions, with the publishing firm of the elder Benning, and
on its bankruptcy, four hundred copies of the second edition were sold
to Stevens & Norton, which firm sued to prevent the younger Benning from
publishing a third edition as revised by Forsyth. The Vice Chancellor
held that though the plaintiffs might presumably sell the copies, if
done without disadvantage to the author, the original contract was not
an assignment, but a personal contract which could not pass to the
plaintiffs, and therefore denied an injunction. In the second case,
where Charles Reade sought to resume his rights in "Peg Woffington" and
"Christie Johnstone," from his publisher Bentley, after all expenses had
been paid and profits on several editions accounted for, the Vice
Chancellor held that the contract, as of a personal nature, could be
terminated by the author when that did not involve loss to the other
party. Copies printed to replace others destroyed by fire were decided
in the case of Blackwood _v._ Brewster, in 1860, in the Scotch Court of
Session, not to constitute a new edition. In the later case of Hole _v._
Bradbury, in 1879, a joint author and the heir of a deceased joint
author of "A little tour in Ireland" were adjudged by Justice Fry to be
entitled to resume their rights and to recover the illustrations from
publishers who had succeeded to the business of the original publishing
firm.

{Sidenote: Author's transfer to other publishers}

In Warne _v._ Routledge, in 1874, where Mrs. Cook sought to transfer
from one publisher to another without notice a book of which 44,000
copies had been printed and 42,000 sold, the plaintiff publisher sought
to restrain the defendant from issuing a new edition until the remaining
copies had been sold. Sir George Jessel, M. R., held that the right of
publishing was an exclusive one for the time of the contract, though the
word exclusive was not used, but that the author could provide for
publication by another publisher immediately on terminating a
contract,--a decision which has been criticized as not compatible with
other decisions nor sound law.

{Sidenote: Proprietary name}

Where a proprietary name becomes identified with a publication, an
assignment of the work may estop the person named from use of his name
or advertisement of his service elsewhere, as in the English case of
Ward _v._ Beeton, in 1875, where the originator of "Beeton's Christmas
Annual," who had been dismissed by the publishers of that work, was
restrained from advertising that he would edit a similar publication for
another publisher. But the editor's name is not necessarily part of the
title, and an editor may not restrain its omission from the title-page,
as was held in the English case of Crookes _v._ Petter, in 1860.

{Sidenote: Copies remaining unsold}

It was decided in the English case of Howitt _v._ Hall, in 1862, by Vice
Chancellor Page Wood, that where a publisher had procured from an author
the copyright for a limited term, in that case four years, he had the
right to sell, after the expiration of the contract term, copies printed
in good faith within the term, though the court indicated that if there
had been an excessive printing of the work with the evident purpose of
stocking up for sale after expiration of the contract, such course would
not be permitted. This precedent indicates that a publisher would have
the right to sell copies printed during the original term of copyright
and remaining in stock, even if an author under the renewal provision of
the American code exercised the right to make arrangements with another
publisher for the renewal term. To like effect it was decided in the
English case of Taylor _v._ Pillow, in 1869, by Vice Chancellor James,
that a copyright proprietor assigning the copyright might thereafter
dispose of copies of a song remaining unsold, in the absence of
stipulations to the contrary. These questions are usually decided in
advance in American publishing practice by provision in the contract
between author and publisher that copies remaining unsold at the end of
the contract term may be reclaimed by the author at a stated price--and
some such provision is always desirable.

{Sidenote: American confirmation}

The same doctrine was upheld in the American case of Pulte _v._ Derby,
in 1852, in the U. S. Circuit Court by Judge McLean, who held that where
the contract for publishing a second edition provided that the
publishers might print as many copies as they could sell, the publishers
might make successive printings in that edition, and that the use of the
words "third edition" on the title-page did not terminate the
arrangement. The author could not meantime publish otherwise, but the
publishers, who held legal title to the copyright within the terms of
the contract, could not exercise rights beyond the second edition, nor
could they assign their rights.

{Sidenote: Renewal term}

American publishers usually expect the author to make a contract for the
entire copyright period, and to make application in their behalf for the
renewal term. It is true that the very large percentage of books lose
their value long before the close of the original term, and that the
percentage where renewal is desirable is very small.

It was a thought to which "Mark Twain's" mind often recurred that a long
copyright term was not desirable, because so few books were of value at
the end of one or two decades, and he frequently put forward a scheme
for extending copyright from period to period, based on the issuance of
a cheap edition under the author's sanction. This scheme, which he
presented in some detail at the time of the Congressional copyright
hearings, did not receive support from other students and advocates of
copyright.

{Sidenote: License not assignment}

A contract giving publishers the "whole and exclusive right of
publication," was decided _In re_ Clinical Obstetrics by the Chancery
Court, through Justice Warrington, in 1908, to be a personal contract
and license, not an assignment of copyright, and the assignment entries
were ordered to be expunged, in line with the decision in 1907 by the
Court of Appeal in _Re_ "The Liedertafel series" _et al._

{Sidenote: Author's and publisher's profits}

The publication of a book involves many indirect expenses, in addition
to the direct cost of manufacture, such as the share of general office
expenses, the large item of advertising and the like. These are
difficult to allot, and this helps to make the "half profits" system a
fruitful occasion of disagreements. On this system or on the commission
basis, the nature and proportion of these indirect charges should be
clearly set forth in the publishing agreement. On a "half profit" or
similar plan, the publisher is not considered to be entitled to make his
own profit on paper, printing, etc., but must account for these at the
cost to him; and in any event the publishers' accounts must be fully
open to the author. On the whole, the payment of royalty, on the usual
American plan, is more satisfactory. The customary royalty is ten per
cent, or in the case of authors of established reputation whose works
have large sale, as high as fifteen or twenty per cent, when the
publishers cover all expenses, except that on school books and
"subscription" editions the royalty is usually five per cent. When an
author pays for the plates or for the edition, the return is
substantially higher, as fifteen or twenty per cent to the ordinary
author. The royalty is usually reckoned on ordinary cloth binding,
unless otherwise stated in the contract, and almost invariably not on
copies printed, but on copies sold. A royalty on "all copies sold" was
construed in the King's Bench Division by Justice Walton, in Neufeld
_v._ Chapman in 1901, to cover all forms of publication, including
royalty on a proportionate part of the sales price of a periodical.

{Sidenote: The publisher's share}

The publisher does not, as is sometimes assumed, get the other ninety
per cent as profit; he gets the difference between the receipts from the
trade or public on copies _actually sold_--averaging perhaps two thirds
of the "retail price," on which the author's ten per cent (really thus
fifteen per cent) is reckoned--and the cost of making the _entire
edition_ and of advertising and marketing the book. The author, in any
event, gets a return proportioned to the success of his book. If its
sales are small, the publisher makes a loss; if large, the publisher
makes a profit increasing proportionately after the initial outlay for
publication has been covered.

{Sidenote: "Author's editions"}

{Sidenote: Printer's lien}

When an author arranges with a publisher or printer to issue a book at
author's expense, such editions being usually known as "author's
editions," great care should be taken to make such arrangements only
with publishers or printers of known and high character and to base them
on a complete and exact written contract, defining particularly the
amount of commission or royalty to be paid by or to the author, or the
expenses to be allowed before reckoning "half profits." Publishers of
good repute make such arrangements in the case of books not likely to
show adequate commercial profit, but there are publishers and printers
who make a business of such transactions with authors without adequately
providing to give the author the best possible market, and these cannot
always be expected to deal fairly with him. Arrangements made directly
between an author (or publisher) and a printer as such, are scarcely
within the scope of this work, but it may be said briefly that a printer
usually has a mechanic's lien on plates he has made or sheets he has
printed (but not on plates used by him unless he has made them), until
the bills are paid; and that he may not demand payment until the work
has been completed, or in case of its destruction by fire or otherwise,
previous to complete delivery, in the absence of contract obligation for
advance or partial payment.

{Sidenote: Compulsory license system}

The compulsory license system, often miscalled "the royalty
plan,"--discussed in England in 1877 as the Farrer proposal and in
America about 1890 as the Pearsall-Smith scheme,--is provided by
legislation under which any publisher may publish a work without consent
of the author provided he pays a royalty as specified or stipulated in
the law, as ten or five per cent or a fixed sum per copy. This system
has unfortunately been adopted in the new American code, with reference
to the mechanical reproduction of music, though with the saving clause
that the author has complete right to forbid mechanical reproduction of
his musical composition so long as he does not license any manufacturer.
This American precedent has been followed as to mechanical music in
recent legislation by Germany and other continental countries and in the
modified British measure. The Italian copyright law has, however, a
compulsory license provision for the second forty years of copyright,
under which any publisher can issue a book on payment to the author of
five per cent royalty; and the new British measure contains a like
provision applicable twenty-five or thirty years after the author's
death, on a basis of ten per cent royalty.

{Sidenote: License payments}

The American provision is for two cents for each roll, under elaborate
regulations, as set forth in the chapter on mechanical music provisions.
It is doubtful whether those regulations can be effectively applied, and
indeed the whole provision may prove unconstitutional because of its
interference with the right of sale or license involved in private
property. The several substitutes for these regulations proposed and
discussed, were rejected as even less desirable--as the proposal that
the Copyright Office itself should undertake an elaborate system of
accounting and guarantee to the author as practically a ward of the
state, and another proposal for a system of stamps to be affixed to each
copy published, supplied by the Copyright Office or the author and sold
to the publisher, a system actually in practice in shoe manufacture
under the royalty system of the McKay Shoe Manufacturing Company. The
answer to all these schemes is that the author should be at liberty to
make such arrangements, by contract with one publisher or with many, as
he may please, and that a law to compel him to adopt any one plan of
marketing his wares would interfere with his freedom of choice and his
natural return.

{Sidenote: Saving through single publisher}

The reason that an author chooses one publisher instead of many is the
simple one that the original cost of making and advertising a book is in
this way reduced to one outlay instead of multiplied in many, and that
this cost is minimized by being distributed over the largest possible
edition. It is the practice of any successful publisher to plan for such
an edition as will command the widest sale, and so distribute the
original cost over as many copies as possible, and when a copyright book
proves to be of such general demand that different styles of editions
can be sold, such editions are in fact made by the same publisher. The
compulsory license system would only protect the public against the
unwisdom of publishers, whose mistakes are presently corrected by
business failure or by the transfer of his books by the author to more
enterprising houses.

{Sidenote: Copyrights in bankruptcy}

Copyrights are specifically included, with patents and trade-marks, in
the bankruptcy acts as assets which pass to the trustee, which applies
to a bankrupt author as well as to other copyright proprietors, but as
previously stated, this does not include the personal contract for the
publication of an unassigned work. This last doctrine was fully upheld
in the English case of Griffith _v._ Tower Pub. Co. & Moncrieff, in
1897, by Justice Stirling, where the liquidator of a corporation was
enjoined from transferring a copyright direct to a publisher not
acceptable to the author. A manuscript as such is a tangible asset in
bankruptcy if of value in itself, but the right of the author to
copyright or to publish his manuscript is a personal and not a property
right, which therefore does not pass in case of bankruptcy, and a court
would probably not undertake to compel an author to realize the value of
an unpublished work for the benefit of creditors by publication and
copyright. Nor may a bankrupt author be compelled in bankruptcy process
to complete his work, as was decided in 1841 in the English case of
Gibson _v._ Carruthers.

{Sidenote: Copyrights in taxation}

Copyrights, like patents, are subject to the inheritance tax, as
capitalized on the basis of income. In the appraisal of 1911 of the
copyrights of Mrs. Mary Baker G. Eddy, author of "Science and health,"
and other Christian Science books, the valuation returned for tax
purposes reached $1,400,000, which is probably the largest valuation
ever put upon the copyrights of any one author. The copyrights of the
late Marion Crawford were appraised by the New York State tax
authorities, in the same year, by valuing his last novel at the income
during its first year of publication and his earlier novels at the
income for three years passed. Neither method afforded a fair valuation,
as a work may be dead after its first year, and the test by income
through successive years would depend on whether sales were decreasing
or increasing during the period. Standard school books are sometimes
estimated as worth three years' income, but such a generalization would
not apply in other cases. Each valuation, for tax or sales purposes,
must depend upon the circumstances in each case. An inheritance or other
tax on copyrights, which are intangible property, may fairly be
questioned, in view of the uncertainty whether the legatees may realize
any future return from the property.



XXIII

THE LITERATURE OF COPYRIGHT


{Sidenote: Bibliographical materials}

The literature of copyright is extensive and its bibliography would now
make a volume in itself. The bibliography of literary property prepared
by Thorvald Solberg, now Register of Copyrights, for the Bowker-Solberg
volume of 1886, occupying sixty pages, covered approximately fifteen
hundred titles, besides analytical indexes to several periodicals. The
bibliography to the present date, inclusive of that material, which
Register Solberg has continued, would increase this record at least
twofold. The copyright campaign resulting in the code of 1909 was
especially prolific of drafts and bills, Congressional and other reports
and private publications, of which "dry as dust" indication is given in
the earlier chapter containing the record of that campaign. Nothing more
can be attempted in this chapter than a brief glance over historical
material and leading works.

{Sidenote: Early history}

The early history of copyright is to be traced only through incidental
references in classical and medieval works. Among these may be instanced
Montalembert's "Monks of the West" and Brown's "History of the printing
press in Venice," previously cited. George Haven Putnam's work on "Books
and their makers in the Middle Ages" (New York, Putnams, 1896-97, 8vo, 2
v., 459, 538 p.), though dealing chiefly with publishing relations,
incidentally gives much information on the early history of printing
privileges and copyrights proper. Several of the law book writers,
notably Copinger, summarize in some measure the early history of
copyright.

{Sidenote: Early American contributions}

Perhaps the earliest American publication distinctively on copyright was
the "Remarks on literary property," by Philip H. Nicklin, in 1838, in
which he included as an appendix a reprint of Joseph Lowe's summary of
copyright history and practice up to 1819, from the Encyclopædia
Britannica supplement, and argued for longer, if not perpetual copyright
for our own authors, on the plea that "charity begins at home," as well
as for international copyright throughout a world-wide republic of
letters. The later movements in America for international copyright
brought out much writing, though largely in periodical articles and
pamphlets, among the most noteworthy of which were Dr. Francis Lieber's
letter "On international copyright," of 1840, Henry C. Carey's "Letters
on international copyright," of 1853, and "The international copyright
question considered," of 1872, George Haven Putnam's monograph on
"International copyright," of 1878, and Richard Grant White's "American
view of the copyright question," of 1880.

{Sidenote: Later American pamphleteers}

During the copyright campaign leading to the act of 1891, several
pamphlets were issued on behalf of the American (Authors) Copyright
League, notably Rev. Dr. Henry van Dyke's "National sin of piracy," of
1888, and Prof. Brander Matthews's "Cheap books and good books," on the
texts of James Russell Lowell's epigram, "There is one thing better than
a cheap book, and that is a book honestly come by," and George William
Curtis's words, "Cheap books are good things, but cheapening the public
conscience is a very bad thing,"--which last paper is reprinted in
Putnam's "Question of copyright."

{Sidenote: American treatises}

The leading American law book writer has been Eaton S. Drone, later
editor of the New York _Herald_, whose valuable "Treatise on the law of
property in intellectual productions in Great Britain and the United
States" (Boston, Little, Brown & Co., 1879, 8vo, 774 p.) covered
comprehensively the general copyright legislation of 1870-74, and
superseded the earlier standard American law book, George Ticknor
Curtis's work of 1847, "Treatise on the law of copyright ... as enacted
and administered in England and America." The volume on "Copyright, its
law and its literature," by R. R. Bowker and Thorvald Solberg (N. Y.
_Publishers' Weekly_, 1886, 8vo, 136 p.), the latter furnishing the
bibliography of copyright, included facsimile of the autograph
signatures in the memorial of American authors of 1885, and a reprint of
Sir James Stephen's digest of British copyright law, as well as the
revised statutes, constituting the copyright law of the United States at
that time. "The question of copyright," by George Haven Putnam (N. Y.,
Putnams, 1891, 12mo, 412 p.), brought into one compilation many of the
important documents and articles, including the text of the act of 1891.
A valuable digest of "Copyright cases, 1891-1903," American and English,
was compiled by Arthur S. Hamlin for the American Publishers Copyright
League (N. Y., Putnams, 1904, 8vo, 237 p.).

{Sidenote: Copyright Office publications}

The most valuable series of current publications on copyright are those
issued from the Library of Congress by the Copyright Office, under
Register Solberg's administration. The most important of these series is
that of Copyright Office _Bulletins_ issued at irregular intervals, of
which No. 14 presents the current copyright law and No. 15, issued in
1910, gives the "Rules and regulations for the registration of claims to
copyright" under the new law. No. 3, as issued in a second edition in
1906, contains the full text of "Copyright enactments of the United
States, 1783-1906," and No. 8, issued in 1905, "Copyright in Congress,
1789-1904," contains a bibliographical and chronological record of all
proceedings in Congress. Several bulletins were issued during the
preparation of the law of 1909, of which the most important was No. 9,
giving the "Provisions of the United States copyright laws with a
summary of some parallel provisions of the laws of foreign countries."
No. 5 covers copyright in England, presenting the full text of copyright
acts from 1875 to 1902, including and supplementing Sir James Stephen's
digest of British copyright law; No. 6, "Copyright in Canada and
Newfoundland" up to 1903; No. 7, "Foreign copyright laws now in force"
up to 1904; No. 11, "Copyright in Japan" up to 1906; and No. 13, the
documents of the International Copyright Union, including the Berlin
convention of 1908. Bulletins No. 1 and 2 cover the former copyright law
and directions for registration under it. Many of these bulletins are
already out of print. A minor series is that of _Information circulars_,
of which forty-five have been published, many of them now out of date
and superseded, covering from time to time current information as to
laws, proclamations, treaties, etc., domestic and foreign, as well as
opinions of the Attorneys-General, custom regulations and the like.

{Sidenote: Labor report}

A report on the effect of the international copyright law by the
Commissioner of Labor, Carroll D. Wright, was presented to the Senate in
1901.

{Sidenote: English contributions about 1840}

Copyright literature in England is too extensive for more than brief
reference here. "The great debate," led by Serjeant Talfourd on one side
and Lord Macaulay on the other, is recorded in Hansard's Parliamentary
Debates (third series, volume LVI of 1841), and the speeches of the two
combatants are reprinted in their respective works. John James Lowndes's
"Historical sketch of the law of copyright" was printed in 1840, with
especial reference to Serjeant Talfourd's bill, and contained an
appendix on the state of copyright in foreign countries--America,
France, Holland and Belgium, the German states, Russia, Denmark, Norway
and Sweden, Spain, and the Two Sicilies. "A plea for perpetual
copyright," by W. D. Christie, was also put forth in 1840. Carlyle's
caustic "Petition on the copyright bill" is included in his "Critical
and miscellaneous essays."

{Sidenote: Later English contributions}

Among the later noteworthy contributions to the subject were the caustic
denunciation of international piracy by Charles Reade, the novelist,
under the title "The eighth commandment," reprinted in America by
Ticknor & Fields, in 1860; Matthew Arnold's _Fortnightly_ article of
1880, on "Copyright," printed in the volume of his collected works
containing his "Irish essays"; John Camden Hotten's seven letters on
"Literary copyright," in a volume of 1871; and Walter Besant's volume
"The pen and the book," of 1899, containing a special chapter on
copyright and literary property by G. H. Thring, Secretary of the
British Society of Authors. Herbert Spencer made several contributions
to the subject, some of which were reprinted in his "Various fragments."

{Sidenote: English legal treatises}

There had been published, so early as 1823, the first edition of Richard
Godson's "Practical treatise on the law of patents for inventions and of
copyright," which was immediately translated into French and became the
standard English work, being supplemented in 1832 with an abstract of
the laws in foreign countries and republished in a second comprehensive
edition in 1840 by Saunders & Benning, London; in 1844 this second
edition, with a supplement covering the recent laws, was reissued by W.
Benning & Co., in an octavo of 700 pages, and in 1851 a separately
published supplement by Peter Burke brought Godson's work up to that
date. Another early English law book was Robert Maugham's "Treatise on
the laws of literary property, comprising the statutes and cases; with
an historical view and disquisitions," published by Longmans in 1828.
The standard work of W. A. Copinger on "The law of copyright, in works
of literature and art," first published in 1870 and reissued in a fourth
edition, as edited by J. M. Easton (London, Stevens & Haynes, 1904, 8vo,
1155 p.), includes as well as English and American decisions, chapters
on international copyright and on copyright in foreign countries, with
full text of English and many foreign statutes, and many legal forms. A
work by J. H. Slater covered "The law relating to copyright and
trade-marks" (London, Stevens, 1884, 8vo, 466 p.), in the form of a
digest of the more important English and American decisions. The writer
of the York Prize Essay of the University of Cambridge for 1882, T. E.
Scrutton, rewrote and extended his work under the title of "The law of
copyright," later continued into a fourth enlarged edition (London,
Clowes, 1893, 4 ed., 8vo, 356 p.). B. A. Cohen published a compact study
of "The law of copyright" in 1896.

{Sidenote: Birrell's lectures}

Augustine Birrell, as Quain Professor of law at University College,
London, delivered a series of lectures in 1898, of which seven were
printed in his delightfully readable little volume on "The law and
history of copyright in books" (London, Cassell, 1899, 12mo, 228 p.).

{Sidenote: MacGillivray's works}

The latest English law book writer is E. L. MacGillivray, whose
"Treatise upon the law of copyright," British and American (London,
Murray, 1902, 8vo, 439 p.) is extremely valuable as a case digest, with
foot-note references to cases. This was followed by a brief "Digest of
the law of copyright," English only, prepared by the same writer for the
Publishers Association of Great Britain and Ireland (London,
Butterworth, 1906, 12mo, 106 p.). The same association has printed
annually from 1901, a digest of "Copyright cases," which are collected
in two volumes, for 1901-04 and 1905-10 inclusive, also edited by Mr.
MacGillivray.

{Sidenote: English special treatises}

Special English treatises on specific classes of copyright protection
are Colles and Hardy's "Playright and copyright in all countries"
(London, Macmillan, 1906, 8vo, 275 p.); Edward Cutler's "Manual of
musical copyright law" (London, Simpkin, Marshall, 1905, 8vo, 213 p.);
Reginald Winslow's "The law of artistic copyright" (London, Clowes,
1889, 8vo, 215 p.); Edmunds and Bentwich's "The law of copyright in
designs" (London, Sweet & Maxwell, 1908, 2 ed., 8vo, 488 p.); Knox and
Hind's "Law of copyright in designs" (London, Reeves & Turner, 1899,
8vo, 264 p.); and William Briggs's comprehensive treatise on "The law of
international copyright" (London, Stevens & Haynes, 1906, 8vo, 870 p.),
the most important publication in English in its field.

{Sidenote: Parliamentary and Commission reports}

The Parliamentary papers giving reports of special commissions, referred
to in previous chapters, constitute an important part of the English
literature of copyright, the most notable being the report of the Royal
Copyright Commission issued in 1878, with Sir James Stephen's digest of
the law as then existing, and a supplementary blue-book of evidence; the
report of the Musical Copyright Committee appointed by the Home
Department, of 1904; the report of the Law of Copyright Committee
appointed by the President of the Board of Trade, of 1909, with
accompanying minutes of evidence; and the minutes of the Imperial
Copyright Conference of 1909. The new copyright bill has been four times
printed in progressive form--on its first introduction, July 26, 1910,
on its reintroduction, March 30, 1911, as it emerged from committee,
July 13, 1911, and as it went to the Lords, August 18, 1911.

The pending Canadian bill has been printed only as introduced April 26,
1911, but the government has supplied an accompanying memorandum
comparing its provisions with existing law.

{Sidenote: Cyclopædias and digests}

The American and English law cyclopædias and digests also give
references to copyright cases and decisions, some in special chapters,
more or less comprehensive of recent copyright interpretations.

{Sidenote: French works}

The most recent authoritative French works on literary property are
Eugène Pouillet's "Traité théorique et pratique de la propriété
littéraire et artistique" (Paris, Marchal & Billard, 3d ed., 1908, 1028
p.); Gustave Huard's "Traité de la propriété intellectuelle, v. 1.
Propriété littéraire et artistique" (Paris, Marchal & Billard, 1903, 400
p.), and A. Huard and Édouard Mack's "Répertoire de législation, de
doctrine et de jurisprudence en matière de propriété littéraire et
artistique" (Paris, Marchal & Billard, 1909, 740 p.). An earlier
elaborate work is that of Claude Couhin, "La propriété industrielle,
artistique et littéraire" (Paris, Larose, 1894), in three volumes.

{Sidenote: German works}

For Germany the text of the general copyright law of June 19, 1901, of
the law relating to figurative arts and photographs of January 9, 1907,
and the amendatory law including mechanical music reproductions, May 22,
1910, should be consulted. Otto Lindemann's "Das Urheberrecht an Werken
der Literatur und der Tonkunst" (Berlin, Guttentag, 1910, 3d ed., 16mo,
155 p.) is a brief compilation of and comment on these laws of 1901 and
1910. The most recent and authoritative general works are Prof. Josef
Kohler's "Urheberrecht an Schriftwerken und Verlagsrecht" (Stuttgart, F.
Enke, 1907, 527 p.), though some of his statements of theory have given
rise to criticism and dispute, and his "Kunstwerkrecht" (Stuttgart,
Enke, 1908, 191 p.), Daude's "Die Reichsgesetze über das Urheberrecht an
Werken der Literatur und Tonkunst und das Verlagsrecht" (Berlin,
Guttentag, 1910, 293 p.), and Dr. Albert Osterrieth's "Das Urheberrecht
an Werken der bildenden Künste und der Photographie" (Berlin, Heymann,
1907, 312 p.).

{Sidenote: Early German contributions}

In the early German literature of copyright should be noted the works of
Pütter, sometimes called the father of the modern theory of property in
intellectual productions, who wrote as early as 1764, an edition of
whose "Beyträge zum Teutschen Staats- u. Fürsten-Rechte" was published
in Göttingen in 1777; and the tractate of Immanuel Kant, "Von der
Unrechtmässigkeit des Büchernachdrucks," which may be found in his
collected works.

{Sidenote: Italian works}

The most important Italian work of recent issue is that of Eduardo
Piola-Caselli, "Del diritto di autore" (Naples, E. Marghieri, 1907, 875
p.), and earlier works of standard character are Enrico Rosmini's
"Legislazione e jurisprudenza sui diritti d'autore" (Milan, M. Hoepli,
1890, 671 p.), and Pietro Esperson, "De' diritti di autore sulle opere
dell'ingegno ne' rapporti internazionali" (Torino, Unione
tipografico-editrice, 1899, 278 p.).

{Sidenote: Spanish compendium}

A useful compendium of Spanish copyright law of 1879 _et seq._, covering
both the Peninsula and the _ultramar_ colonies, was published in Havana
by La Propaganda Literaria, in 1890, as edited with an interesting
comparison of Spanish law with that of Great Britain and America by D.
F. G. Garofalo y Morales.

{Sidenote: International compilations}

A most valuable compilation of the copyright laws and treaties of all
countries, comprising a literal translation into German of about 250
acts, is "Gesetze über das Urheberrecht in allen Ländern," edited in a
second edition by Prof. Ernest Röthlisberger (Leipzig, Hedeler, 1902,
418 p.), which was complemented by his summary of the domestic and
international law of copyright in the different countries, "Der interne
und der internationale Schutz des Urheberrechts," also in its second
edition (Leipzig, Boersenverein der deutschen Buchhändler, 1904, 116
p.), comprising references or mentions covering fifty-seven countries
and forty-nine colonies, especially the British colonies. With these
should be mentioned "Recueil des conventions et traités concernant la
propriété littéraire et artistique," published under the auspices of the
Bureau of the International Copyright Union (Berne, Bureau de l'Union
internationale, 1904, 8vo, 908 p.). These works are supplemented by the
publication from month to month in the _Droit d'Auteur_ of Berne, of
which Prof. Röthlisberger is the editor, of new conventions, treaties,
laws and other material, bringing world-information up to date.



APPENDIXES



                                I

          UNITED STATES OF AMERICA: COPYRIGHT PROVISIONS


1. UNITED STATES COPYRIGHT CODE OF 1909

AN ACT TO AMEND AND CONSOLIDATE THE ACTS RESPECTING COPYRIGHT

{Sidenote: Exclusive right to print, publish and vend}

_Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled_, That any person entitled
thereto, upon complying with the provisions of this Act, shall have the
exclusive right:

(a) To print, reprint, publish, copy, and vend the copyrighted work;

{Sidenote: To translate, dramatize arrange and adapt, etc.}

(b) To translate the copyrighted work into other languages or dialects,
or make any other version thereof, if it be a literary work; to
dramatize it if it be a non-dramatic work; to convert it into a novel or
other non-dramatic work if it be a drama; to arrange or adapt it if it be
a musical work; to complete, execute, and finish it if it be a model or
design for a work of art;

{Sidenote: To deliver lectures, sermons, etc.}

(c) To deliver or authorize the delivery of the copyrighted work in
public for profit if it be a lecture, sermon, address, or similar
production;

{Sidenote: To represent dramatic works, or make record, or exhibit or
perform, etc.}

(d) To perform or represent the copyrighted work publicly if it be a
drama or, if it be a dramatic work and not reproduced in copies for
sale, to vend any manuscript or any record whatsoever thereof; to make
or to procure the making of any transcription or record thereof by or
from which, in whole or in part, it may in any manner or by any method
be exhibited, performed, represented, produced, or reproduced; and to
exhibit, perform, represent, produce, or reproduce it in any manner or
by any method whatsoever;

{Sidenote: To perform music and make arrangement, setting, or record}

{Sidenote: Act not retroactive.}

{Sidenote: Music by foreign author}

{Sidenote: Control of mechanical musical reproduction}

{Sidenote: Royalty for use of music on records, etc.}

{Sidenote: Notice of use of music on records}

{Sidenote: License to use music on records}

(e) To perform the copyrighted work publicly for profit if it be a
musical composition and for the purpose of public performance for
profit; and for the purposes set forth in subsection (a) hereof, to make
any arrangement or setting of it or of the melody of it in any system of
notation or any form of record in which the thought of an author may be
recorded and from which it may be read or reproduced: _Provided_, That
the provisions of this Act, so far as they secure copyright controlling
the parts of instruments serving to reproduce mechanically the musical
work, shall include only compositions published and copyrighted after
this Act goes into effect, and shall not include the works of a foreign
author or composer unless the foreign state or nation of which such
author or composer is a citizen or subject grants, either by treaty,
convention, agreement, or law, to citizens of the United States similar
rights: _And provided further, and as a condition of extending the
copyright control to such mechanical reproductions_, That whenever the
owner of a musical copyright has used or permitted or knowingly
acquiesced in the use of the copyrighted work upon the parts of
instruments serving to reproduce mechanically the musical work, any
other person may make similar use of the copyrighted work upon the
payment to the copyright proprietor of a royalty of two cents on each
such part manufactured, to be paid by the manufacturer thereof; and the
copyright proprietor may require, and if so the manufacturer shall
furnish, a report under oath on the twentieth day of each month on the
number of parts of instruments manufactured during the previous month
serving to reproduce mechanically said musical work, and royalties shall
be due on the parts manufactured during any month upon the twentieth of
the next succeeding month. The payment of the royalty provided for by
this section shall free the articles or devices for which such royalty
has been paid from further contribution to the copyright except in case
of public performance for profit: _And provided further_, That it shall
be the duty of the copyright owner, if he uses the musical composition
himself for the manufacture of parts of instruments serving to reproduce
mechanically the musical work, or licenses others to do so, to file
notice thereof, accompanied by a recording fee, in the copyright office,
and any failure to file such notice shall be a complete defense to any
suit, action, or proceeding for any infringement of such copyright.

{Sidenote: Failure to pay royalties}

In case of the failure of such manufacturer to pay to the copyright
proprietor within thirty days after demand in writing the full sum of
royalties due at said rate at the date of such demand the court may
award taxable costs to the plaintiff and a reasonable counsel fee, and
the court may, in its discretion, enter judgment therein for any sum in
addition over the amount found to be due as royalty in accordance with
the terms of this Act, not exceeding three times such amount.

{Sidenote: Reproduction of music on coin-operated machines}

The reproduction or rendition of a musical composition by or upon
coin-operated machines shall not be deemed a public performance for
profit unless a fee is charged for admission to the place where such
reproduction or rendition occurs.

{Sidenote: Right at common law or in equity}

SEC. 2. That nothing in this Act shall be construed to annul or limit
the right of the author or proprietor of an unpublished work, at common
law or in equity, to prevent the copying, publication, or use of such
unpublished work without his consent, and to obtain damages therefor.

{Sidenote: Component parts of copyrightable work}

{Sidenote: Composite works or periodicals}

SEC. 3. That the copyright provided by this Act shall protect all the
copyrightable component parts of the work copyrighted, and all matter
therein in which copyright is already subsisting, but without extending
the duration or scope of such copyright. The copyright upon composite
works or periodicals shall give to the proprietor thereof all the rights
in respect thereto which he would have if each part were individually
copyrighted under this Act.

{Sidenote: Works protected}

SEC. 4. That the works for which copyright may be secured under this Act
shall include all the writings of an author.

{Sidenote: Classification of copyright works}

SEC. 5. That the application for registration shall specify to which of
the following classes the work in which copyright is claimed belongs:

(a) Books, including composite and cyclopædic works, directories,
gazetteers, and other compilations;

(b) Periodicals, including newspapers;

(c) Lectures, sermons, addresses, prepared for oral delivery;

(d) Dramatic or dramatico-musical compositions;

(e) Musical compositions;

(f) Maps;

(g) Works of art; models or designs for works of art;

(h) Reproductions of a work of art;

(i) Drawings or plastic works of a scientific or technical character;

(j) Photographs;

(k) Prints and pictorial illustrations:

{Sidenote: Classification does not limit copyright}

_Provided, nevertheless_, That the above specifications shall not be
held to limit the subject-matter of copyright as defined in section four
of this Act, nor shall any error in classification invalidate or impair
the copyright protection secured under this Act.

{Sidenote: Compilations, abridgements, dramatizations, translations, new
editions}

{Sidenote: Subsisting copyright not affected}

SEC. 6. That compilations or abridgements, adaptations, arrangements,
dramatizations, translations, or other versions of works in the public
domain, or of copyrighted works when produced with the consent of the
proprietor of the copyright in such works, or works republished with new
matter, shall be regarded as new works subject to copyright under the
provisions of this Act; but the publication of any such new works shall
not affect the force or validity of any subsisting copyright upon the
matter employed or any part thereof, or be construed to imply an
exclusive right to such use of the original works, or to secure or
extend copyright in such original works.

{Sidenote: Not subject-matter of copyright: works in public domain;
government publications}

SEC. 7. That no copyright shall subsist in the original text of any work
which is in the public domain, or in any work which was published in
this country or any foreign country prior to the going into effect of
this Act and has not been already copyrighted in the United States, or
in any publication of the United States Government, or any reprint, in
whole or in part, thereof: _Provided, however_ That the publication or
republication by the Government, either separately or in a public
document, of any material in which copyright is subsisting shall not be
taken to cause any abridgement or annulment of the copyright or to
authorize any use or appropriation of such copyright material without
the consent of the copyright proprietor.

{Sidenote: Copyright to author or proprietor for terms specified in Act}

{Sidenote: Foreign authors}

SEC. 8. That the author or proprietor of any work made the subject of
copyright by this Act, or his executors, administrators, or assigns,
shall have copyright for such work under the conditions and for the
terms specified in this Act: _Provided, however_, That the copyright
secured by this Act shall extend to the work of an author or proprietor
who is a citizen or subject of a foreign state or nation, only:

{Sidenote: Alien authors domiciled in U. S.}

(a) When an alien author or proprietor shall be domiciled within the
United States at the time of the first publication of his work; or

{Sidenote: Authors, when citizens of countries granting reciprocal
rights}

{Sidenote: International agreement}

(b) When the foreign state or nation of which such author or proprietor
is a citizen or subject grants, either by treaty, convention, agreement,
or law, to citizens of the United States the benefit of copyright on
substantially the same basis as to its own citizens, or copyright
protection substantially equal to the protection secured to such foreign
author under this Act, or by treaty; or when such foreign state or
nation is a party to an international agreement which provides for
reciprocity in the granting of copyright, by the terms of which
agreement the United States may, at its pleasure, become a party
thereto.

{Sidenote: Presidential proclamation}

The existence of the reciprocal conditions aforesaid shall be determined
by the President of the United States, by proclamation made from time to
time, as the purposes of this Act may require.

{Sidenote: Publication with notice initiates copyright}

SEC. 9. That any person entitled thereto by this Act may secure
copyright for his work by publication thereof with the notice of
copyright required by this Act; and such notice shall be affixed to each
copy thereof published or offered for sale in the United States by
authority of the copyright proprietor, except in the case of books
seeking ad interim protection under section twenty-one of this Act.

{Sidenote: Registration of copyright}

{Sidenote: Copyright certificate}

SEC. 10. That such person may obtain registration of his claim to
copyright by complying with the provisions of this Act, including the
deposit of copies, and upon such compliance the register of copyright
shall issue to him the certificate provided for in section fifty-five of
this Act.

{Sidenote: Copyright protection of unpublished works: lectures, dramas,
music, etc.}

{Sidenote: Deposit of copies after publication}

SEC. 11. That copyright may also be had of the works of an author of
which copies are not reproduced for sale, by the deposit, with claim of
copyright, of one complete copy of such work if it be a lecture or
similar production or a dramatic or musical composition; of a
photographic print if the work be a photograph; or of a photograph or
other identifying reproduction thereof if it be a work of art or a
plastic work or drawing. But the privilege of registration of copyright
secured hereunder shall not exempt the copyright proprietor from the
deposit of copies under sections twelve and thirteen of this Act where
the work is later reproduced in copies for sale.

{Sidenote: Two complete copies of best edition}

{Sidenote: Periodical contributions}

{Sidenote: Work not reproduced in copies for sale}

{Sidenote: No action for infringement until deposit of copies}

SEC. 12. That after copyright has been secured by publication of the
work with the notice of copyright as provided in section nine of this
Act, there shall be promptly deposited in the copyright office or in the
mail addressed to the register of copyrights, Washington, District of
Columbia, two complete copies of the best edition thereof then
published, which copies, if the work be a book or periodical, shall have
been produced in accordance with the manufacturing provisions specified
in section fifteen of this Act; or if such work be a contribution to a
periodical, for which contribution special registration is requested,
one copy of the issue or issues containing such contribution; or if the
work is not reproduced in copies for sale, there shall be deposited the
copy, print, photograph, or other identifying reproduction provided by
section eleven of this Act, such copies or copy, print, photograph, or
other reproduction to be accompanied in each case by a claim of
copyright. No action or proceeding shall be maintained for infringement
of copyright in any work until the provisions of this Act with respect
to the deposit of copies and registration of such work shall have been
complied with.

{Sidenote: Failure to deposit copies}

{Sidenote: Register of copyrights may demand copies}

{Sidenote: Fine $100 and retail price of 2 copies, best edition}

{Sidenote: Forfeiture of copyright}

SEC. 13. That should the copies called for by section twelve of this Act
not be promptly deposited as herein provided, the register of copyrights
may at any time after the publication of the work, upon actual notice,
require the proprietor of the copyright to deposit them, and after the
said demand shall have been made, in default of the deposit of copies of
the work within three months from any part of the United States, except
an outlying territorial possession of the United States, or within six
months from any outlying territorial possession of the United States, or
from any foreign country, the proprietor of the copyright shall be
liable to a fine of one hundred dollars and to pay to the Library of
Congress twice the amount of the retail price of the best edition of the
work, and the copyright shall become void.

{Sidenote: Postmaster's receipt}

SEC. 14. That the postmaster to whom are delivered the articles
deposited as provided in sections eleven and twelve of this Act shall,
if requested, give a receipt therefor and shall mail them to their
destination without cost to the copyright claimant.

{Sidenote: Printed from type set within U. S.}

{Sidenote: Book in foreign language excepted}

{Sidenote: Lithographic or photo-engraving process}

{Sidenote: Printing and binding of the book}

{Sidenote: Illustrations in a book}

{Sidenote: Separate lithographs and photo-engravings}

{Sidenote: Books for blind excepted}

{Sidenote: Books in foreign languages excepted}

SEC. 15. That of the printed book or periodical specified in section
five, subsections (a) and (b) of this Act, except the original text of a
book of foreign origin in a language or languages other than English,
the text of all copies accorded protection under this Act, except as
below provided, shall be printed from type set within the limits of the
United States, either by hand or by the aid of any kind of type-setting
machine, or from plates made within the limits of the United States from
type set therein, or, if the text be produced by lithographic process,
or photo-engraving process, then by a process wholly performed within
the limits of the United States, and the printing of the text and
binding of the said book shall be performed within the limits of the
United States; which requirements shall extend also to the illustrations
within a book consisting of printed text and illustrations produced by
lithographic process, or photo-engraving process, and also to separate
lithographs or photo-engravings, except where in either case the
subjects represented are located in a foreign country and illustrate a
scientific work or reproduce a work of art; but they shall not apply to
works in raised characters for the use of the blind, or to books of
foreign origin in a language or languages other than English, or to
books published abroad in the English language seeking ad interim
protection under this Act.

{Sidenote: Affidavit of American manufacture}

{Sidenote: Printing and binding of the book}

{Sidenote: Establishment where printing was done}

{Sidenote: Date of publication}

SEC. 16. That in the case of the book the copies so deposited shall be
accompanied by an affidavit, under the official seal of any officer
authorized to administer oaths within the United States, duly made by
the person claiming copyright or by his duly authorized agent or
representative residing in the United States, or by the printer who has
printed the book, setting forth that the copies deposited have been
printed from type set within the limits of the United States or from
plates made within the limits of the United States from type set
therein; or, if the text be produced by lithographic process, or
photo-engraving process, that such process was wholly performed within
the limits of the United States, and that the printing of the text and
binding of the said book have also been performed within the limits of
the United States. Such affidavit shall state also the place where and
the establishment or establishments in which such type was set or plates
were made or lithographic process, or photo-engraving process or
printing and binding were performed and the date of the completion of
the printing of the book or the date of publication.

{Sidenote: False affidavit, a misdemeanor; fine, $1,000 and forfeiture
of copyright}

SEC. 17. That any person who, for the purpose of obtaining registration
of a claim to copyright, shall knowingly make a false affidavit as to
his having complied with the above conditions shall be deemed guilty of
a misdemeanor, and upon conviction thereof shall be punished by a fine
of not more than one thousand dollars, and all of his rights and
privileges under said copyright shall thereafter be forfeited.

{Sidenote: Notice of copyright}

{Sidenote: Notice on maps, copies of works of art, photographs, and
prints}

{Sidenote: Notice on accessible portion}

{Sidenote: Notice on existing copyright works [See note below]}

SEC. 18. That the notice of copyright[2] required by section nine of
this Act shall consist either of the word "Copyright" or the
abbreviation "Copr." accompanied by the name of the copyright
proprietor, and if the work be a printed literary, musical, or dramatic
work, the notice shall include also the year in which the copyright was
secured by publication. In the case, however, of copies of works
specified in subsections (f) to (k), inclusive, of section five of this
Act, the notice may consist of the letter C inclosed within a circle,
thus: ©, accompanied by the initials, monogram, mark, or symbol of the
copyright proprietor: _Provided_, That on some accessible portion of
such copies or of the margin, back, permanent base, or pedestal, or of
the substance on which such copies shall be mounted, his name shall
appear. But in the case of works in which copyright is subsisting when
this Act shall go into effect, the notice of copyright may be either in
one of the forms prescribed herein or in one of those prescribed by the
Act of June eighteenth, eighteen hundred and seventy-four.

  Footnote 2: The Act of June 18, 1874, provides that the
     notice of copyright to be inscribed on each copy of a
     copyrighted work shall consist of the following words:

     "Entered according to act of Congress, in the year ----, by
     A. B., in the office of the Librarian of Congress, at
     Washington"; or, ... the word "Copyright," together with the
     year the copyright was entered, and the name of the party by
     whom it was taken out, thus: "Copyright, 18-- by A. B."

{Sidenote: Notice of copyright on book}

{Sidenote: On periodical}

{Sidenote: One notice in each volume or periodical}

SEC. 19. That the notice of copyright shall be applied, in the case of a
book or other printed publication, upon its title-page or the page
immediately following, or if a periodical either upon the title-page or
upon the first page of text of each separate number or under the title
heading, or if a musical work either upon its title-page or the first
page of music: _Provided_, That one notice of copyright in each volume
or in each number of a newspaper or periodical published shall suffice.

{Sidenote: Omission of notice by accident or mistake}

{Sidenote: Innocent infringement}

SEC. 20. That where the copyright proprietor has sought to comply with
the provisions of this Act with respect to notice, the omission by
accident or mistake of the prescribed notice from a particular copy or
copies shall not invalidate the copyright or prevent recovery for
infringement against any person who, after actual notice of the
copyright, begins an undertaking to infringe it, but shall prevent the
recovery of damages against an innocent infringer, who has been misled
by the omission of the notice; and in a suit for infringement no
permanent injunction shall be had unless the copyright proprietor shall
reimburse to the innocent infringer his reasonable outlay, innocently
incurred, if the court, in its discretion, shall so direct.

{Sidenote: Book published abroad in the English language}

{Sidenote: Ad interim copyright for 30 days}

SEC. 21. That in the case of a book published abroad in the English
language before publication in this country, the deposit in the
copyright office, not later than thirty days after its publication
abroad, of one complete copy of the foreign edition, with a request for
the reservation of the copyright and a statement of the name and
nationality of the author and of the copyright proprietor and of the
date of publication of the said book, shall secure to the author or
proprietor an ad interim copyright, which shall have all the force and
effect given to copyright by this Act, and shall endure until the
expiration of thirty days after such deposit in the copyright office.

{Sidenote: Extension to full term}

{Sidenote: Deposit of copies, filing of affidavit}

SEC. 22. That whenever within the period of such ad interim protection
an authorized edition of such book shall be published within the United
States, in accordance with the manufacturing provisions specified in
section fifteen of this Act, and whenever the provisions of this Act as
to deposit of copies, registration, filing of affidavit, and the
printing of the copyright notice shall have been duly complied with, the
copyright shall be extended to endure in such book for the full term
elsewhere provided in this Act.

{Sidenote: Duration of copyright: 1st term, 28 years}

{Sidenote: Posthumous works, periodicals, cyclopædic or composite works}

{Sidenote: Renewal term 28 years}

{Sidenote: Other copyrighted works, first term 28 years}

{Sidenote: Renewal term 28 years; to author, widow, children, heirs or
next of kin}

{Sidenote: Notice that renewal term is desired}

{Sidenote: Copyright ends in 28 years unless renewed}

SEC. 23. That the copyright secured by this Act shall endure for
twenty-eight years from the date of first publication, whether the
copyrighted work bears the author's true name or is published
anonymously or under an assumed name: _Provided_, That in the case of
any posthumous work or of any periodical, cyclopædic, or other composite
work upon which the copyright was originally secured by the proprietor
thereof, or of any work copyrighted by a corporate body (otherwise than
as assignee or licensee of the individual author) or by an employer for
whom such work is made for hire, the proprietor of such copyright shall
be entitled to a renewal and extension of the copyright in such work for
the further term of twenty-eight years when application for such renewal
and extension shall have been made to the copyright office and duly
registered therein within one year prior to the expiration of the
original term of copyright: _And provided further_, That in the case of
any other copyrighted work, including a contribution by an individual
author to a periodical or to a cyclopædic or other composite work when
such contribution has been separately registered, the author of such
work, if still living, or the widow, widower, or children of the author,
if the author be not living, or if such author, widow, widower, or
children be not living, then the author's executors, or in the absence
of a will, his next of kin shall be entitled to a renewal and extension
of the copyright in such work for a further term of twenty-eight years
when application for such renewal and extension shall have been made to
the copyright office and duly registered therein within one year prior
to the expiration of the original term of copyright: _And provided
further_, That in default of the registration of such application for
renewal and extension, the copyright in any work shall determine at the
expiration of twenty-eight years from first publication.

{Sidenote: Extension of subsisting copyrights}

{Sidenote: Proprietor entitled to renewal for composite work}

{Sidenote: Renewal application}

SEC. 24. That the copyright subsisting in any work at the time when this
Act goes into effect may, at the expiration of the term provided for
under existing law, be renewed and extended by the author of such work
if still living, or the widow, widower, or children of the author, if
the author be not living, or if such author, widow, widower, or children
be not living, then by the author's executors, or in the absence of a
will, his next of kin, for a further period such that the entire term
shall be equal to that secured by this Act, including the renewal
period: _Provided, however_, That if the work be a composite work upon
which copyright was originally secured by the proprietor thereof, then
such proprietor shall be entitled to the privilege of renewal and
extension granted under this section: _Provided_, That application for
such renewal and extension shall be made to the copyright office and
duly registered therein within one year prior to the expiration of the
existing term.

{Sidenote: Infringement of copyright}

SEC. 25. That if any person shall infringe the copyright in any work
protected under the copyright laws of the United States such person
shall be liable:

{Sidenote: Injunction}

(a) To an injunction restraining such infringement;

{Sidenote: Damages}

{Sidenote: Proving sales}

{Sidenote: Newspaper reproduction of photograph; recovery, $50-$200}

{Sidenote: Maximum recovery, $5,000}

{Sidenote: Minimum recovery, $250}

(b) To pay to the copyright proprietor such damages as the copyright
proprietor may have suffered due to the infringement, as well as all the
profits which the infringer shall have made from such infringement, and
in proving profits the plaintiff shall be required to prove sales only
and the defendant shall be required to prove every element of cost which
he claims, or in lieu of actual damages and profits such damages as to
the court shall appear to be just, and in assessing such damages the
court may, in its discretion, allow the amounts as hereinafter stated,
but in the case of a newspaper reproduction of a copyrighted photograph
such damages shall not exceed the sum of two hundred dollars nor be less
than the sum of fifty dollars, and such damages shall in no other case
exceed the sum of five thousand dollars nor be less than the sum of two
hundred and fifty dollars, and shall not be regarded as a penalty:

{Sidenote: Painting, statue, or sculpture, $10 per copy}

     First. In the case of a painting, statue, or sculpture ten
     dollars for every infringing copy made or sold by or found
     in the possession of the infringer or his agents or
     employees;

{Sidenote: Other works, $1 per copy}

     Second. In the case of any work enumerated in section five
     of this Act, except a painting, statue, or sculpture, one
     dollar for every infringing copy made or sold by or found in
     the possession of the infringer or his agents or employees;

{Sidenote: Lectures, $50}

     Third. In the case of a lecture, sermon, or address, fifty
     dollars for every infringing delivery;

{Sidenote: Dramatic or musical works, $100 and $50}

{Sidenote: Other musical compositions, $10}

     Fourth. In the case of dramatic or dramatico-musical or a
     choral or orchestral composition, one hundred dollars for
     the first and fifty dollars for every subsequent infringing
     performance; in the case of other musical compositions, ten
     dollars for every infringing performance;

{Sidenote: Delivering up infringing articles}

(c) To deliver up on oath, to be impounded during the pendency of the
action, upon such terms and conditions as the court may prescribe, all
articles alleged to infringe a copyright;

{Sidenote: Destruction}

(d) To deliver up on oath for destruction all the infringing copies or
devices, as well as all plates, molds, matrices or other means for
making such infringing copies as the court may order;

{Sidenote: Infringement by mechanical instruments}

{Sidenote: Injunction may be granted}

{Sidenote: Recovery of royalty}

{Sidenote: Notice to proprietor of intention to use}

{Sidenote: Damages, three times amount provided}

{Sidenote: Temporary injunction}

(e) Whenever the owner of a musical copyright has used or permitted the
use of the copyrighted work upon the parts of musical instruments
serving to reproduce mechanically the musical work, then in case of
infringement of such copyright by the unauthorized manufacture, use, or
sale of interchangeable parts, such as disks, rolls, bands, or cylinders
for use in mechanical music-producing machines adapted to reproduce the
copyrighted music, no criminal action shall be brought, but in a civil
action an injunction may be granted upon such terms as the court may
impose, and the plaintiff shall be entitled to recover in lieu of
profits and damages a royalty as provided in section one, subsection
(e), of this Act: _Provided also_, That whenever any person, in the
absence of a license agreement, intends to use a copyrighted musical
composition upon the parts of instruments serving to reproduce
mechanically the musical work, relying upon the compulsory license
provision of this Act, he shall serve notice of such intention, by
registered mail, upon the copyright proprietor at his last address
disclosed by the records of the copyright office, sending to the
copyright office a duplicate of such notice; and in case of his failure
so to do the court may, in its discretion, in addition to sums
hereinabove mentioned, award the complainant a further sum, not to
exceed three times the amount provided by section one, subsection (e),
by way of damages, and not as a penalty, and also a temporary injunction
until the full award is paid.

{Sidenote: Rules for practice and procedure}

Rules and regulations for practice and procedure under this section
shall be prescribed by the Supreme Court of the United States.

{Sidenote: Judgment enforcing remedies}

SEC. 26. That any court given jurisdiction under section thirty-four of
this Act may proceed in any action, suit, or proceeding instituted for
violation of any provision hereof to enter a judgment or decree
enforcing the remedies herein provided.

{Sidenote: Proceedings, injunction, etc., may be united in one action}

SEC. 27. That the proceedings for an injunction, damages, and profits,
and those for the seizure of infringing copies, plates, molds, matrices,
and so forth, aforementioned, may be united in one action.

{Sidenote: Penalty for willful infringement}

{Sidenote: Oratorios, cantatas, etc. may be performed}

SEC. 28. That any person who willfully and for profit shall infringe
any copyright secured by this Act, or who shall knowingly and willfully
aid or abet such infringement, shall be deemed guilty of a misdemeanor,
and upon conviction thereof shall be punished by imprisonment for not
exceeding one year or by a fine of not less than one hundred dollars nor
more than one thousand dollars, or both, in the discretion of the court:
_Provided, however_, That nothing in this Act shall be so construed as
to prevent the performance of religious or secular works, such as
oratorios, cantatas, masses, or octavo choruses by public schools,
church choirs or vocal societies, rented, borrowed, or obtained from
some public library, public school, church choir, school choir, or vocal
society, provided the performance is given for charitable or educational
purposes and not for profit.

{Sidenote: False notice of copyright (penalty for)}

{Sidenote: Fraudulent removal of notice; fine $100-$1,000}

{Sidenote: Issuing, selling, or importing article bearing false notice;
fine $100}

SEC. 29. That any person who, with fraudulent intent, shall insert or
impress any notice of copyright required by this Act, or words of the
same purport, in or upon any uncopyrighted article, or with fraudulent
intent shall remove or alter the copyright notice upon any article duly
copyrighted shall be guilty of a misdemeanor, punishable by a fine of
not less than one hundred dollars and not more than one thousand
dollars. Any person who shall knowingly issue or sell any article
bearing a notice of United States copyright which has not been
copyrighted in this country, or who shall knowingly import any article
bearing such notice or words of the same purport, which has not been
copyrighted in this country, shall be liable to a fine of one hundred
dollars.

{Sidenote: Importation prohibited of articles bearing false notice and
piratical copies}

SEC. 30. That the importation into the United States of of any article
bearing a false notice of copyright when there is no existing copyright
thereon in the United States, or of any piratical copies of any work
copyrighted in the United States, is prohibited.

{Sidenote: Prohibition of importation of books}

{Sidenote: Exceptions to prohibition}

SEC. 31. That during the existence of the American copyright in any book
the importation into the United States of any piratical copies thereof
or of any copies thereof (although authorized by the author or
proprietor) which have not been produced in accordance with the
manufacturing provisions specified in section fifteen of this Act, or
any plates of the same not made from type set within the limits of the
United States, or any copies thereof produced by lithographic or
photo-engraving process not performed within the limits of the United
States, in accordance with the provisions of section fifteen of this
Act, shall be, and is hereby, prohibited: _Provided, however_, That,
except as regards piratical copies, such prohibition shall not apply:

{Sidenote: Works for the blind}

(a) To works in raised characters for the use of the blind;

{Sidenote: Foreign newspapers or magazines}

(b) To a foreign newspaper or magazine, although containing matter
copyrighted in the United States printed or reprinted by authority of
the copyright proprietor, unless such newspaper or magazine contains
also copyright matter printed or reprinted without such authorization;

{Sidenote: Books in foreign languages}

(c) To the authorized edition of a book in a foreign language or
languages of which only a translation into English has been copyrighted
in this country;

{Sidenote: Importation of authorized foreign books permitted}

(d) To any book published abroad with the authorization of the author or
copyright proprietor when imported under the circumstances stated in one
of the four subdivisions following, that is to say:

{Sidenote: For individual use and not for sale}

     First. When imported, not more than one copy at one time,
     for individual use and not for sale; but such privilege of
     importation shall not extend to a foreign reprint of a book
     by an American author copyrighted in the United States;

{Sidenote: For the use of U. S.}

     Second. When imported by the authority or for the use of the
     United States;

{Sidenote: For the use of societies, libraries, etc.}

     Third. When imported, for use and not for sale, not more
     than one copy of any such book in any one invoice, in good
     faith, by or for any society or institution incorporated for
     educational, literary, philosophical, scientific, or
     religious purposes, or for the encouragement of the fine
     arts, or for any college, academy, school, or seminary of
     learning, or for any State, school, college, university, or
     free public library in the United States;

{Sidenote: Libraries purchased en bloc}

{Sidenote: Books brought personally into U. S.}

     Fourth. When such books form parts of libraries or
     collections purchased en bloc for the use of societies,
     institutions, or libraries designated in the foregoing
     paragraph, or form parts of the libraries or personal
     baggage belonging to persons or families arriving from
     foreign countries and are not intended for sale:

{Sidenote: Imported copies not to be used to violate copyright}

     _Provided_, That copies imported as above may not lawfully
     be used in any way to violate the rights of the proprietor
     of the American copyright or annul or limit the copyright
     protection secured by this Act, and such unlawful use shall
     be deemed an infringement of copyright.

{Sidenote: Seizure of unlawfully imported copies}

{Sidenote: Copies of authorized books imported may be returned}

SEC. 32. That any and all articles prohibited importation by this Act
which are brought into the United States from any foreign country
(except in the mails) shall be seized and forfeited by like proceedings
as those provided by law for the seizure and condemnation of property
imported into the United States in violation of the customs revenue
laws. Such articles when forfeited shall be destroyed in such manner as
the Secretary of the Treasury or the court, as the case may be, shall
direct: _Provided, however_, That all copies of authorized editions of
copyright books imported in the mails or otherwise in violation of the
provisions of this Act may be exported and returned to the country of
export whenever it is shown to the satisfaction of the Secretary of the
Treasury, in a written application, that such importation does not
involve willful negligence or fraud.

{Sidenote: Secretary of Treasury and Postmaster-General to make rules to
prevent unlawful importation}

SEC. 33. That the Secretary of the Treasury and the Postmaster-General
are hereby empowered and required to make and enforce such joint rules
and regulations as shall prevent the importation into the United States
in the mails of articles prohibited importation by this Act, and may
require notice to be given to the Treasury Department, or Post Office
Department, as the case may be, by copyright proprietors or injured
parties, of the actual or contemplated importation of articles
prohibited importation by this Act, and which infringe the rights of
such copyright proprietors or injured parties.

{Sidenote: Jurisdiction of courts in copyright cases}

SEC. 34. That all actions, suits, or proceedings arising under the
copyright laws of the United States shall be originally cognizable by
the circuit courts of the United States, the district court of any
Territory, the supreme court of the District of Columbia, the district
courts of Alaska, Hawaii, and Porto Rico, and the courts of first
instance of the Philippine Islands.

{Sidenote: District in which suit may be brought}

SEC. 35. That civil actions, suits, or proceedings arising under this
Act may be instituted in the district of which the defendant or his
agent is an inhabitant, or in which he may be found.

{Sidenote: Injunctions may be granted}

SEC. 36. That any such court or judge thereof shall have power, upon
bill in equity filed by any party aggrieved, to grant injunctions to
prevent and restrain the violation of any right secured by said laws,
according to the course and principles of courts of equity, on such
terms as said court or judge may deem reasonable. Any injunction that
may be granted restraining and enjoining the doing of anything forbidden
by this Act may be served on the parties against whom such injunction
may be granted anywhere in the United States, and shall be operative
throughout the United States and be enforceable by proceedings in
contempt or otherwise by any other court or judge possessing
jurisdiction of the defendants.

{Sidenote: Certified copy of papers filed}

SEC. 37. That the clerk of the court, or judge granting the injunction,
shall, when required so to do by the court hearing the application to
enforce said injunction, transmit without delay to said court a
certified copy of all the papers in said cause that are on file in his
office.

{Sidenote: Judgments, etc., may be reviewed on appeal or writ of error}

SEC. 38. That the orders, judgments, or decrees of any court mentioned
in section thirty-four of this Act arising under the copyright laws of
the United States may be reviewed on appeal or writ of error in the
manner and to the extent now provided by law for the review of cases
determined in said courts, respectively.

{Sidenote: No criminal proceedings after three years}

SEC. 39. That no criminal proceeding shall be maintained under the
provisions of this Act unless the same is commenced within three years
after the cause of action arose.

{Sidenote: Full costs shall be allowed}

SEC. 40. That in all actions, suits, or proceedings under this Act,
except when brought by or against the United States or any officer
thereof, full costs shall be allowed, and the court may award to the
prevailing party a reasonable attorney's fee as part of the costs.

{Sidenote: Copyright distinct from property in material object}

{Sidenote: Transfer of any copy of copyrighted work permitted}

SEC. 41. That the copyright is distinct from the property in the
material object copyrighted, and the sale or conveyance, by gift or
otherwise, of the material object shall not of itself constitute a
transfer of the copyright, nor shall the assignment of the copyright
constitute a transfer of the title to the material object; but nothing
in this Act shall be deemed to forbid, prevent, or restrict the transfer
of any copy of a copyrighted work the possession of which has been
lawfully obtained.

{Sidenote: Copyright may be assigned, mortgaged, or bequeathed}

SEC. 42. That copyright secured under this or previous Acts of the
United States may be assigned, granted, or mortgaged by an instrument in
writing signed by the proprietor of the copyright, or may be bequeathed
by will.

{Sidenote: Assignment executed in foreign country to be acknowledged}

SEC. 43. That every assignment of copyright executed in a foreign
country shall be acknowledged by the assignor before a consular officer
or secretary of legation of the United States authorized by law to
administer oaths or perform notarial acts. The certificate of such
acknowledgement under the hand and official seal of such consular
officer or secretary of legation shall be prima facie evidence of the
execution of the instrument.

{Sidenote: Assignments to be recorded}

SEC. 44. That every assignment of copyright shall be recorded in the
copyright office within three calendar months after its execution in the
United States or within six calendar months after its execution without
the limits of the United States, in default of which it shall be void as
against any subsequent purchaser or mortgagee for a valuable
consideration, without notice, whose assignment has been duly recorded.

{Sidenote: Register of copyrights to record assignments}

SEC. 45. That the register of copyright shall, upon payment of the
prescribed fee, record such assignment, and shall return it to the
sender with a certificate of record attached under seal of the copyright
office, and upon the payment of the fee prescribed by this Act he shall
furnish to any person requesting the same a certified copy thereof under
the said seal.

{Sidenote: Assignee's name may be substituted in copyright notice}

SEC. 46. That when an assignment of the copyright in a specified book or
other work has been recorded the assignee may substitute his name for
that of the assignor in the statutory notice of copyright prescribed by
this Act.

{Sidenote: Copyright records}

SEC. 47. That all records and other things relating to copyrights
required by law to be preserved shall be kept and preserved in the
copyright office, Library of Congress, District of Columbia, and shall
be under the control of the register of copyrights, who shall, under the
direction and supervision of the Librarian of Congress, perform all the
duties relating to the registration of copyrights.

{Sidenote: Register of copyrights and assistant register of copyrights}

SEC. 48. That there shall be appointed by the Librarian of Congress a
register of copyrights, at a salary of four thousand dollars per annum,
and one assistant register of copyrights, at a salary of three thousand
dollars per annum, who shall have authority during the absence of the
register of copyrights to attach the copyright office seal to all papers
issued from the said office and to sign such certificates and other
papers as may be necessary. There shall also be appointed by the
Librarian such subordinate assistants to the register as may from time
to time be authorized by law.

{Sidenote: Register of copyrights to deposit and account for fees}

{Sidenote: Shall make monthly report of fees}

SEC. 49. That the register of copyrights shall make daily deposits in
some bank in the District of Columbia, designated for this purpose by
the Secretary of the Treasury as a national depository, of all moneys
received to be applied as copyright fees, and shall make weekly deposits
with the Secretary of the Treasury, in such manner as the latter shall
direct, of all copyright fees actually applied under the provisions of
this Act, and annual deposits of sums received which it has not been
possible to apply as copyright fees or to return to the remitters, and
shall also make monthly reports to the Secretary of the Treasury and to
the Librarian of Congress of the applied copyright fees for each
calendar month, together with a statement of all remittances received,
trust funds on hand, moneys refunded, and unapplied balances.

{Sidenote: Bond of register of copyrights}

SEC. 50. That the register of copyrights shall give bond to the United
States in the sum of twenty thousand dollars, in form to be approved by
the Solicitor of the Treasury and with sureties satisfactory to the
Secretary of the Treasury, for the faithful discharge of his duties.

{Sidenote: Annual report of register of copyrights}

SEC. 51. That the register of copyrights shall make an annual report to
the Librarian of Congress, to be printed in the annual report on the
Library of Congress, of all copyright business for the previous fiscal
year, including the number and kind of works which have been deposited
in the copyright office during the fiscal year, under the provisions of
this Act.

{Sidenote: Seal of copyright office}

SEC. 52. That the seal provided under the Act of July eighth, eighteen
hundred and seventy, and at present used in the copyright office, shall
continue to be the seal thereof, and by it all papers issued from the
copyright office requiring authentication shall be authenticated.

{Sidenote: Rules for the registration of copyrights}

SEC. 53. That, subject to the approval of the Librarian of Congress, the
register of copyrights shall be authorized to make rules and regulations
for the registration of claims to copyright as provided by this Act.

{Sidenote: Record books}

{Sidenote: Entry of copyright}

SEC. 54. That the register of copyrights shall provide and keep such
record books in the copyright office as are required to carry out the
provisions of this Act, and whenever deposit has been made in the
copyright office of a copy of any work under the provisions of this Act
he shall make entry thereof.

{Sidenote: Certificate of registration}

{Sidenote: Certificate for book to state receipt of affidavit}

{Sidenote: Certificate may be given to any person}

{Sidenote: Receipt for copies deposited}

SEC. 55. That in the case of each entry the person recorded as the
claimant of the copyright shall be entitled to a certificate of
registration under seal of the copyright office, to contain his name and
address, the title of the work upon which copyright is claimed, the date
of the deposit of the copies of such work, and such marks as to class
designation and entry number as shall fully identify the entry. In the
case of a book the certificate shall also state the receipt of the
affidavit as provided by section sixteen of this Act, and the date of
the completion of the printing, or the date of the publication of the
book, as stated in the said affidavit. The register of copyrights shall
prepare a printed form for the said certificate, to be filled out in
each case as above provided for, which certificate, sealed with the seal
of the copyright office, shall, upon payment of the prescribed fee, be
given to any person making application for the same, and the said
certificate shall be admitted in any court as prima facie evidence of
the facts stated therein. In addition to such certificate the register
of copyrights shall furnish, upon request, without additional fee, a
receipt for the copies of the work deposited to complete the
registration.

{Sidenote: Index to copyright registrations}

{Sidenote: Catalogue of copyright entries}

{Sidenote: Catalogue cards}

{Sidenote: Catalogues and indexes prima facie evidence}

SEC. 56. That the register of copyrights shall fully index all copyright
registrations and assignments and shall print at periodic intervals a
catalogue of the titles of articles deposited and registered for
copyright, together with suitable indexes, and at stated intervals shall
print complete and indexed catalogues for each class of copyright
entries, and may thereupon, if expedient, destroy the original
manuscript catalogue cards containing the titles included in such
printed volumes and representing the entries made during such intervals.
The current catalogues of copyright entries and the index volumes herein
provided for shall be admitted in any court as prima facie evidence of
the facts stated therein as regards any copyright registration.

{Sidenote: Distribution of catalogue of copyright entries}

{Sidenote: Subscription price}

{Sidenote: Superintendent of Documents to receive subscriptions}

SEC. 57. That the said printed current catalogues as they are issued
shall be promptly distributed by the copyright office to the collectors
of customs of the United States and to the postmasters of all exchange
offices of receipt of foreign mails, in accordance with revised lists of
such collectors of customs and postmasters prepared by the Secretary of
the Treasury and the Postmaster-General, and they shall also be
furnished to all parties desiring them at a price to be determined by
the register of copyrights, not exceeding five dollars per annum for the
complete catalogue of copyright entries and not exceeding one dollar per
annum for the catalogues issued during the year for any one class of
subjects. The consolidated catalogues and indexes shall also be supplied
to all persons ordering them at such prices as may be determined to be
reasonable, and all subscriptions for the catalogues shall be received
by the Superintendent of Public Documents, who shall forward the said
publications; and the moneys thus received shall be paid into the
Treasury of the United States and accounted for under such laws and
Treasury regulations as shall be in force at the time.

{Sidenote: Record books, etc., open to inspection}

{Sidenote: Copies may be taken of entries in record books}

SEC. 58. That the record books of the copyright office, together with
the indexes to such record books, and all works deposited and retained
in the copyright office, shall be open to public inspection; and copies
may be taken of the copyright entries actually made in such record
books, subject to such safeguards and regulations as shall be prescribed
by the register of copyrights and approved by the Librarian of Congress.

{Sidenote: Disposition of copyright deposits}

{Sidenote: Preservation of copyright deposits}

SEC. 59. That of the articles deposited in the copyright office under
the provisions of the copyright laws of the United States or of this
Act, the Librarian of Congress shall determine what books and other
articles shall be transferred to the permanent collections of the
Library of Congress, including the law library, and what other books or
articles shall be placed in the reserve collections of the Library of
Congress for sale or exchange, or be transferred to other governmental
libraries in the District of Columbia for use therein.

{Sidenote: Disposal of copyright deposits}

{Sidenote: Manuscript copies to be preserved}

SEC. 60. That of any articles undisposed of as above provided, together
with all titles and correspondence relating thereto, the Librarian of
Congress and the register of copyrights jointly shall, at suitable
intervals, determine what of these received during any period of years
it is desirable or useful to preserve in the permanent files of the
copyright office, and, after due notice as hereinafter provided, may
within their discretion cause the remaining articles and other things to
be destroyed: _Provided_, That there shall be printed in the Catalogue
of Copyright Entries from February to November, inclusive, a statement
of the years of receipt of such articles and a notice to permit any
author, copyright proprietor, or other lawful claimant to claim and
remove before the expiration of the month of December of that year
anything found which relates to any of his productions deposited or
registered for copyright within the period of years stated, not reserved
or disposed of as provided for in this Act: _And provided further_, That
no manuscript of an unpublished work shall be destroyed during its term
of copyright without specific notice to the copyright proprietor of
record, permitting him to claim and remove it.

{Sidenote: Fees}

{Sidenote: Fee for registration}

{Sidenote: Fee for certificate}

{Sidenote: Fee for recording assignment}

{Sidenote: Fee for copy of assignment}

{Sidenote: Fee for recording notice of user}

{Sidenote: Fee for comparing assignment}

{Sidenote: Fee for recording renewal}

{Sidenote: Fee for recording transfer}

{Sidenote: Fee for search}

{Sidenote: Only one registration required}

SEC. 61. That the register of copyrights shall receive, and the persons
to whom the services designated are rendered shall pay, the following
fees: For the registration of any work subject to copyright, deposited
under the provisions of this Act, one dollar, which sum is to include a
certificate of registration under seal: _Provided_, That in the case of
photographs the fee shall be fifty cents where a certificate is not
demanded. For every additional certificate of registration made, fifty
cents. For recording and certifying any instrument of writing for the
assignment of copyright, or any such license specified in section one,
subsection (e), or for any copy of such assignment or license, duly
certified, if not over three hundred words in length, one dollar; if
more than three hundred and less than one thousand words in length, two
dollars; if more than one thousand words in length, one dollar
additional for each one thousand words or fraction thereof over three
hundred words. For recording the notice of user or acquiescence
specified in section one, subsection (e), twenty-five cents for each
notice if not over fifty words, and an additional twenty-five cents for
each additional one hundred words. For comparing any copy of an
assignment with the record of such document in the copyright office and
certifying the same under seal, one dollar. For recording the extension
or renewal of copyright provided for in sections twenty-three and
twenty-four of this Act, fifty cents. For recording the transfer of the
proprietorship of copyrighted articles, ten cents for each title of a
book or other article, in addition to the fee prescribed for recording
the instrument of assignment. For any requested search of copyright
office records, indexes, or deposits, fifty cents for each full hour of
time consumed in making such search: _Provided_, That only one
registration at one fee shall be required in the case of several volumes
of the same book deposited at the same time.

{Sidenote: Definitions: "date of publication"}

{Sidenote: "Author"}

SEC. 62. That in the interpretation and construction of this Act "the
date of publication" shall in the case of a work of which copies are
reproduced for sale or distribution be held to be the earliest date when
copies of the first authorized edition were placed on sale, sold, or
publicly distributed by the proprietor of the copyright or under his
authority, and the word "author" shall include an employer in the case
of works made for hire.

{Sidenote: Repealing clause}

SEC. 63. That all laws or parts of laws in conflict with the provisions
of this Act are hereby repealed, but nothing in this Act shall effect
causes of action for infringement of copyright heretofore committed now
pending in courts of the United States, or which may hereafter be
instituted; but such causes shall be prosecuted to a conclusion in the
manner heretofore provided by law.

{Sidenote: Date of enforcement}

SEC. 64. That this Act shall go into effect on the first day of July,
nineteen hundred and nine.

APPROVED, MARCH 4, 1909.


                   2. PRESIDENT'S PROCLAMATIONS

          BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
                         A PROCLAMATION

Whereas it is provided by the act of Congress of March 4, 1909, entitled
"An act to amend and consolidate the acts respecting copyright," that
the benefits of said act, excepting the benefits under section 1 (_e_)
thereof, as to which special conditions are imposed, shall extend to the
work of an author or proprietor who is a citizen or subject of a foreign
state or nation, only upon certain conditions set forth in section 8 of
said act, to wit:

(_a_) When an alien author or proprietor shall be domiciled within the
United States at the time of the first publication of his work: or

(_b_) When the foreign state or nation of which such author or
proprietor is a citizen or subject grants, either by treaty, convention,
agreement, or law, to citizens of the United States the benefit of
copyright on substantially the same basis as to its own citizens, or
copyright protection substantially equal to the protection secured to
such foreign author under this act or by treaty; or when such foreign
state or nation is a party to an international agreement which provides
for reciprocity in the granting of copyright, by the terms of which
agreement the United States may, at its pleasure, become a party
thereto:

And whereas it is also provided by said section that "The existence of
the reciprocal conditions aforesaid shall be determined by the President
of the United States, by proclamation made from time to time as the
purposes of this act may require":

And whereas satisfactory evidence has been received that in Austria,
Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great
Britain and her possessions, Italy, Mexico, the Netherlands and
possessions, Norway, Portugal, Spain, and Switzerland the law permits
and since July 1, 1909, has permitted to citizens of the United States
the benefit of copyright on substantially the same basis as to citizens
of those countries:

Now, therefore, I, William Howard Taft, President of the United States
of America, do declare and proclaim that one of the alternative
conditions specified in section 8, of the act of March 4, 1909, is now
fulfilled, and since July 1, 1909, has continuously been fulfilled, in
respect to the citizens or subjects of Austria, Belgium, Chile, Costa
Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions,
Italy, Mexico, the Netherlands and possessions, Norway, Portugal, Spain,
and Switzerland, and that the citizens or subjects of the aforementioned
countries are and since July 1, 1909, have been entitled to all the
benefits of the said act other than the benefits under section 1 (_e_)
thereof, as to which the inquiry is still pending.

In testimony whereof, I have hereunto set my hand and caused the seal of
the United States to be affixed.

  Done at the city of Washington this ninth day of April,
           in the year of our Lord one thousand nine hundred
           and ten, and of the Independence of the
  [SEAL.]  United States of America the one hundred and
           thirty-fourth.

                                     WM. H. TAFT.

  By the President:
    P. C. KNOX,
      _Secretary of State_

Luxemburg was added by proclamation of June 29, 1910, and Sweden, May
26, 1911, to go into effect June 1, 1911.

A proclamation accepting reciprocal relations with Germany as to
mechanical music reproductions was issued December 8, 1910. Similar
proclamations under date of June 14, 1911, covered Belgium, Luxemburg
and Norway.


                3. UNITED STATES SUPREME COURT RULES

RULES ADOPTED BY THE SUPREME COURT OF THE UNITED STATES FOR PRACTICE AND
PROCEDURE UNDER SECTION 25 OF AN ACT TO AMEND AND CONSOLIDATE THE ACTS
RESPECTING COPYRIGHT, APPROVED MARCH 4, 1909. TO GO INTO EFFECT JULY 1,
1909.

1. The existing rules of equity practice, so far as they may be
applicable, shall be enforced in proceedings instituted under section
twenty-five (25) of the act of March fourth, nineteen hundred and nine,
entitled "An act to amend and consolidate the acts respecting
copyright."

2. A copy of the alleged infringement of copyright, if actually made,
and a copy of the work alleged to be infringed, should accompany the
petition, or its absence be explained; except in cases of alleged
infringement by the public performance of dramatic and dramatico-musical
compositions, the delivery of lectures, sermons, addresses, and so
forth, the infringement of copyright upon sculptures and other similar
works and in any case where it is not feasible.

3. Upon the institution of any action, suit, or proceeding, or at any
time thereafter, and before the entry of final judgment or decree
therein, the plaintiff or complainant, or his authorized agent or
attorney, may file with the clerk of any court given jurisdiction under
section 34 of the act of March 4, 1909, an affidavit stating upon the
best of his knowledge, information, and belief, the number and location,
as near as may be, of the alleged infringing copies, records, plates,
molds, matrices, etc., or other means for making the copies alleged to
infringe the copyright, and the value of the same, and with such
affidavit shall file with the clerk a bond executed by at least two
sureties and approved by the court or a commissioner thereof.

4. Such bond shall bind the sureties in a specified sum, to be fixed by
the court, but not less than twice the reasonable value of such
infringing copies, plates, records, molds, matrices, or other means for
making such infringing copies, and be conditioned for the prompt
prosecution of the action, suit or proceeding; for the return of said
articles to the defendant, if they or any of them are adjudged not to be
infringements, or if the action abates, or is discontinued before they
are returned to the defendant; and for the payment to the defendant of
any damages which the court may award to him against the plaintiff or
complainant. Upon the filing of said affidavit and bond, and the
approval of said bond, the clerk shall issue a writ directed to the
marshal of the district where the said infringing copies, plates,
records, molds, matrices, etc., or other means of making such infringing
copies shall be stated in said affidavit to be located, and generally to
any marshal of the United States, directing the said marshal to
forthwith seize and hold the same subject to the order of the court
issuing said writ, or of the court of the district in which the seizure
shall be made.

5. The marshal shall thereupon seize said articles or any smaller or
larger part thereof he may then or thereafter find, using such force as
may be reasonably necessary in the premises, and serve on the defendant
a copy of the affidavit, writ, and bond by delivering the same to him
personally, if he can be found within the district, of if he can not be
found, to his agent, if any, or to the person from whose possession the
articles are taken, or if the owner, agent, or such person can not be
found within the district by leaving said copy at the usual place of
abode of such owner or agent with a person of suitable age and
discretion, or at the place where said articles are found, and shall
make immediate return of such seizure, or attempted seizure, to the
court. He shall also attach to said articles a tag or label stating the
fact of such seizure and warning all persons from in any manner
interfering therewith.

6. A marshal who has seized alleged infringing articles, shall retain
them in his possession, keeping them in a secure place, subject to the
order of the court.

7. Within three days after the articles are seized, and a copy of the
affidavit, writ and bond are served as hereinbefore provided, the
defendant shall serve upon the clerk a notice that he excepts to the
amount of the penalty of the bond, or to the sureties of the plaintiff
or complainant, or both, otherwise he shall be deemed to have waived all
objection to the amount of the penalty of the bond and the sufficiency
of the sureties thereon. If the court sustain the exceptions it may
order a new bond to be executed by the plaintiff or complainant, or in
default thereof within a time to be named by the court, the property to
be returned to the defendant.

8. Within ten days after service of such notice, the attorney of the
plaintiff or complainant shall serve upon the defendant or his attorney
a notice of the justification of the sureties, and said sureties shall
justify before the court or a judge thereof at the time therein stated.

9. The defendant, if he does not except to the amount of the penalty of
the bond or the sufficiency of the sureties of the plaintiff or
complainant, may make application to the court for the return to him of
the articles seized, upon filing an affidavit stating all material facts
and circumstances tending to show that the articles seized are not
infringing copies, records, plates, molds, matrices, or means for making
the copies alleged to infringe the copyright.

10. Thereupon the court in its discretion, and after such hearing as it
may direct, may order such return upon the filing by the defendant of a
bond executed by at least two sureties, binding them in a specified sum
to be fixed in the discretion of the court, and conditioned for the
delivery of said specified articles to abide the order of the court. The
plaintiff or complainant may require such sureties to justify within ten
days of the filing of such bond.

11. Upon the granting of such application and the justification of the
sureties on the bond, the marshal shall immediately deliver the articles
seized to the defendant.

12. Any service required to be performed by any marshal may be performed
by any deputy of such marshal.

13. For services in cases arising under this section, the marshal shall
be entitled to the same fees as are allowed for similar services in
other cases.


            4. UNITED STATES COPYRIGHT OFFICE REGULATIONS

RULES AND REGULATIONS FOR THE REGISTRATION OF CLAIMS TO COPYRIGHT

{Sidenote: Copyright under act}

1. Copyright under the act of Congress entitled: "An act to amend and
consolidate the acts respecting copyright," approved March 4, 1909, is
ordinarily secured by printing and publishing a copyrightable work with
a notice of claim in the form prescribed by the statute. Registration
can only be made _after_ such publication, but the statute expressly
provides, in certain cases, for registration of manuscript works.


WHO MAY SECURE COPYRIGHT

{Sidenote: Persons entitled to copyright}

2. The persons entitled by the act to copyright protection for their
works are:

(1) The _author_ of the work, if he is:

(_a_) A citizen of the United States, or

(_b_) A resident alien domiciled in the United States at the time of the
first publication of his work, or

(_c_) A citizen or subject of any country which grants either by treaty,
convention, agreement, or law, to citizens of the United States the
benefit of copyright on substantially the same basis as to its own
citizens. The existence of reciprocal copyright conditions is determined
by presidential proclamation.

(2) The _proprietor_ of a work. The word "proprietor" is here used to
indicate a person who derives his title to the work from the author. If
the author of the work should be a person who could not himself claim
the benefit of the copyright act, the proprietor can not claim it.

(3) The _executors_, _administrators_ or _assigns_ of the
above-mentioned author or proprietor.

{Sidenote: Copyright registration}

3. After the publication of any work entitled to copyright, the claimant
of copyright should register this claim in the Copyright Office. An
action for infringement of copyright can not be maintained in court
until the provisions with respect to the deposit of copies and
registration of such work shall have been complied with.

A certificate of registration is issued to the applicant and duplicates
thereof may be obtained on payment of the statutory fee of 50 cents.


SUBJECT-MATTER OF COPYRIGHT

{Sidenote: Works subject to copyright}

4. The act provides that no copyright shall subsist in the original text
of any work published prior to July 1, 1909, which has not been already
copyrighted in the United States (sec. 7).

Section 5 of the act divides the works for which copyright may be
secured into eleven classes, as follows:

(_a_) _Books._--This term includes all printed literary works (except
dramatic compositions) whether published in the ordinary shape of a book
or pamphlet, or printed as a leaflet, card, or single page. The term
"book" as used in the law includes tabulated forms of information,
frequently called charts; tables of figures showing the results of
mathematical computations, such as logarithmic tables, interest, cost,
and wage tables, etc.; single poems, and the words of a song when
printed and published without music; librettos; descriptions of moving
pictures or spectacles; encyclopædias; catalogues; directories;
gazetteers and similar compilations; circulars or folders containing
information in the form of reading matter other than mere lists of
articles, names and addresses, and literary contributions to periodicals
or newspapers.

{Sidenote: Blank books, etc., not copyrightable}

5. The term "book" can not be applied to--

Blank books for use in business or in carrying out any system of
transacting affairs, such as record books, account books, memorandum
books, diaries or journals, bank deposit and check books; forms of
contracts or leases which do not contain original copyrightable matter;
coupons; forms for use in commercial, legal, or financial transactions,
which are wholly or partly blank and whose value lies in their
usefulness and not in their merit as literary compositions.

Directions on scales, or dials, or mathematical or other instruments;
puzzles; games; rebuses; labels; wrappers; formulæ on boxes, bottles,
and other receptacles of articles for sale or meant to accompany such
articles.

Advertisements or catalogues which merely set forth the names, prices,
and places where articles are for sale.

Prefaces or other introductory matter to works not themselves entitled
to copyright protection, such as blank books.

Calendars are not capable of registration as such, but if they contain
copyrightable reading matter or pictures they may be registered either
as "books" or as "prints" according to the nature of the copyrightable
matter.

{Sidenote: Periodicals}

6. (_b_) _Periodicals._--This term includes newspapers, magazines,
reviews, and serial publications appearing oftener than once a year;
bulletins or proceedings of societies, etc., which appear regularly at
intervals of less than a year; and, generally, periodical publications
which would be registered as second class matter at the post office.

{Sidenote: Lectures, etc.}

7. (_c_) _Lectures_, _sermons_, _addresses_, or similar productions,
prepared for oral delivery.

{Sidenote: Dramatic compositions, etc.}

8. (_d_) _Dramatic and dramatico-musical compositions_, such as dramas,
comedies, operas, operettas and similar works.

The designation "dramatic composition" does not include the following:
Dances, ballets, or other choregraphic works; tableaux and moving
picture shows; stage settings or mechanical devices by which dramatic
effects are produced, or "stage business"; animal shows, sleight-of-hand
performances, acrobatic or circus tricks of any kind; descriptions of
moving pictures or of settings for the production of moving pictures.
(These, however, when printed and published, are registrable as
"books.")

{Sidenote: Dramatico-musical compositions, etc.}

9. _Dramatico-musical compositions_ include principally operas,
operettas, and musical comedies, or similar productions which are to be
acted as well as sung.

{Sidenote: Songs separately published}

Ordinary songs, even when intended to be sung from the stage in a
dramatic manner, or separately published songs from operas and
operettas, should be registered as musical compositions, not
dramatico-musical compositions.

{Sidenote: Musical compositions}

10. (_e_) _Musical compositions_, including other vocal and all
instrumental compositions, with or without words.

But when the text is printed alone it should be registered as a "book,"
not as a "musical composition."

"Adaptations" and "arrangements" may be registered as "new works" under
the provisions of section 6. Mere transpositions into different keys are
not expressly provided for in the copyright act; but if published with
copyright notice and copies are deposited with application, registration
will be made.

{Sidenote: Maps}

11. (_f_) _Maps._--This term includes all cartographical works, such as
terrestrial maps, plats, marine charts, star maps, but not diagrams,
astrological charts, landscapes, or drawings of imaginary regions which
do not have a real existence.

{Sidenote: Works of art}

12. (_g_) _Works of art._--This term includes all works belonging fairly
to the so-called fine arts. (Paintings, drawings, and sculpture.)

Productions of the industrial arts utilitarian in purpose and character
are not subject to copyright registration, even if artistically made or
ornamented.

{Sidenote: Toys, games, etc.}

No copyright exists in toys, games, dolls, advertising novelties,
instruments or tools of any kind, glassware, embroideries, garments,
laces, woven fabrics, or any similar articles.

{Sidenote: Reproductions of works of art}

13. (_h_) _Reproductions of works of art._--This term refers to such
reproductions (engravings, woodcuts, etchings, casts, etc.) as contain
in themselves an artistic element distinct from that of the original
work of art which has been reproduced.

{Sidenote: Drawings or plastic works}

14. (_i_) _Drawings or plastic works of a scientific or technical
character._--This term includes diagrams or models illustrating
scientific or technical works, architects' plans, designs for
engineering work, etc.

{Sidenote: Photographs}

15. (_j_) _Photographs._--This term covers all positive prints from
photographic negatives, including those from moving picture films (the
entire series being counted as a single photograph), but not
photogravures, half tones, and other photo-engravings.

{Sidenote: Prints and pictorial illustrations}

16. (_k_) _Prints and pictorial illustrations._--This term comprises all
printed pictures not included in the various other classes enumerated
above.

{Sidenote: Articles for use not copyrightable}

Articles of utilitarian purpose do not become capable of copyright
registration because they consist in part of pictures which in
themselves are copyrightable, e. g., puzzles, games, rebuses, badges,
buttons, buckles, pins, novelties of every description, or similar
articles.

Postal cards can not be copyrighted as such. The pictures thereon may be
registered as "prints or pictorial illustrations" or as "photographs."
Text matter on a postal card may be of such a character that it may be
registered as a "book."

Mere ornamental scrolls, combinations of lines and colors, decorative
borders, and similar designs, or ornamental letters or forms of type are
not included in the designation "prints and pictorial illustrations."
Trademarks can not be copyrighted nor registered in the Copyright
Office.


HOW TO SECURE REGISTRATION

{Sidenote: Registrable works}

17. Copyright registration may be secured for:

(1) Unpublished works.

(2) Published works.


UNPUBLISHED WORKS

_Unpublished works_ are such as have not at the time of registration
been printed or reproduced in copies for sale, or been publicly
distributed. They include: (_a_) Lectures, sermons, addresses, or
similar productions for oral delivery; (_b_) dramatic and musical
compositions; (_c_) photographic prints; (_d_) works of art (paintings,
drawings, and sculpture), and (_e_) plastic works.

In order to secure copyright in such unpublished works, the following
steps are necessary:

{Sidenote: Registration of unpublished works}

18. (1) In the case of lectures, sermons, addresses, and dramatic and
musical compositions, deposit one typewritten or manuscript copy of the
work.

This copy should be in convenient form, clean and legible, the leaves
securely fastened together, and should bear the title of the work
corresponding to that given in the application.

The entire work in each case should be deposited. It is not sufficient
to deposit a mere outline or epitome, or, in the case of a play, a mere
scenario or a scenario with the synopsis of the dialogue.

{Sidenote: Unpublished photograph}

19. (2) In the case of photographs, deposit one copy of a positive print
of the work. (Photo-engravings or photogravures are not photographs
within the meaning of this provision.)

{Sidenote: Photograph of work of art}

20. (3) In the case of works of art, models or designs for works of art,
or drawings or plastic works of a scientific or technical character,
deposit a photographic reproduction.

In each case the deposited article should be accompanied by an
application for registration and a money order for the amount of the
statutory fee.

{Sidenote: Reproduction of unpublished work}

21. Any work which has been registered as an unpublished work, if
reproduced in copies for sale or distribution, must be deposited a
second time (two copies, accompanied by an application for registration
and the statutory fee) in the same manner as is required in the case of
works published in the first place.


PUBLISHED WORKS

DEPOSIT OF COPIES

{Sidenote: Deposit of copies}

22. After publication of the work with the copyright notice inscribed,
two _complete_ copies of the best edition of the work must be sent to
the Copyright Office, with a proper application for registration
correctly filled out and a money order for the amount of the legal fee.

The statute requires that the deposit of the copyright work shall be
made "promptly," which has been defined as "without unnecessary delay."
It is not essential, however, that the deposit be made on the very day
of publication.

{Sidenote: Definition of "published work"}

23. Published works are such as are printed or otherwise produced and
"placed on sale, sold, or publicly distributed" (_i. e._, so that all
persons who desire copies may obtain them without restriction or
condition other than that imposed by the copyright law). Representation
on the stage of a play is not a publication of it, nor is the public
performance of a musical composition publication. Works intended for
sale or general distribution must first be printed with the statutory
form of copyright notice inscribed on every copy intended to be
circulated.


NOTICE OF COPYRIGHT

{Sidenote: Form of notice}

24. The ordinary form of copyright notice for books, periodicals,
dramatic and musical compositions is "Copyright, 19-- (the year of
publication), by A. B. (the name of the claimant)." The name of the
claimant printed in the notice should be the real name of a living
person, or his trade name if he always uses one (but not a pseudonym or
pen-name), or the name of the firm or corporation claiming to own the
copyright. The copyright notice should not be printed in the name of one
person _for the benefit of another_. The beneficiary's name should be
printed in such cases.

{Sidenote: Short form of notice}

25. In the case of maps, photographs, reproductions of works of art,
prints or pictorial illustrations, works of art, models or designs for
works of art, and plastic works of a scientific or technical character,
the notice may consist of the letter C, inclosed within a circle, thus
©, accompanied with the initials, monogram, mark, or symbol of the
copyright proprietor. But in such cases the name itself of the copyright
proprietor must appear on some accessible portion of the work, or on the
mount of the picture or map, or on the margin, back, or permanent base
or pedestal of the work.

{Sidenote: Notice upon each copy}

26. The prescribed notice must be affixed to each copy of the work
published or offered for sale in the United States. But no notice is
required in the case of foreign books printed abroad seeking _ad
interim_ protection in the United States, as provided in section 21 of
the copyright act.


AMERICAN MANUFACTURE OF COPYRIGHT BOOKS

{Sidenote: Works produced in United States}

27. The following works must be manufactured in the United States in
order to secure copyright:

(_a_) All "books" in the English language and books in any language by a
citizen or domiciled resident of the United States must be printed from
type set within the limits of the United States, either by hand or by
the aid of any kind of type-setting machine, or from plates made within
the limits of the United States from type set therein or, if the text of
such books be produced by lithographic process or photo-engraving
process, then by a process wholly performed within the limits of the
United States; and the printing of the text and binding of the book must
be performed within the limits of the United States.

(_b_) All _illustrations_ within a book produced by lithographic process
or photo-engraving process and all _separate lithographs_ or
_photo-engravings_ must be produced by lithographic or photo-engraving
process wholly performed within the limits of the United States, except
when the subjects represented in such illustrations in a book or such
separate lithographs or photo-engravings "are located in a foreign
country and illustrate a scientific work or reproduce a work of art."

{Sidenote: Books by foreign authors}

28. Books by foreign authors in any language other than English are not
required to be printed in the United States.

{Sidenote: Books printed abroad}

In the case of books printed abroad in the English language an _ad
interim_ term of copyright of thirty days from registration made in the
Copyright Office within thirty days after publication abroad may be
secured; but in order to extend the copyright to the full term of
protection, an edition of the work must be published in the United
States within the thirty days _ad interim_ term, printed or produced
within the limits of the United States as required in section 15 of the
copyright act.


APPLICATION FOR REGISTRATION

{Sidenote: Application for registration}

29. The application for copyright registration required to be sent with
each work (see No. 20) must state the following facts, without which no
registration can be made:

(1) The _name_ and address of the claimant of copyright.

(2) The _nationality_ of the author of the work.

(3) The _title_ of the work.

(4) The name and address of person to whom certificate is to be sent.

(5) In the case of all _published_ works the actual date (year, month,
and day) when the work was published.

{Sidenote: Name of author}

{Sidenote: Nationality of author}

30. In addition, it is desirable that the application should state for
record the name of the author. If, however, the work is published
anonymously or under a pseudonym and it is not desired to place on
record the real name of the author, this may be omitted. In the case of
works made for hire, the employer may be given as the author. By the
nationality of the author is meant citizenship, not race; a person
naturalized in the United States should be described as an American. An
author, a citizen of a foreign country having no copyright relations
with the United States, may secure copyright in this country, if at the
time of publication of his work he is a permanent resident of the United
States. The fact of such permanent residence in the United States should
be expressly stated in the application. Care should be taken that the
title of the work, the name of the author, and the name of the copyright
claimant should be correctly stated in the application, and that they
should agree exactly with the same statements made in the work itself.


APPLICATION FORMS

{Sidenote: Application forms}

31. The Copyright Office has issued the following application forms,
which will be furnished on request, and should be used when applying for
copyright registration:

A1. Book by citizen or resident of the United States.

A1. New ed. New edition of book by citizen or resident of the United
States.

A1. for. Book by citizen or resident of a foreign country, but
manufactured in the United States.

A2. Edition printed in the United States of a book originally published
abroad in the English language.

A3. Book by foreign author in foreign language.

A4. Ad interim. Book published abroad in the English language.

A5. Contribution to a newspaper or periodical.

B1. Periodical. For registration of single issue.

B2. Periodical. General application and deposit.

C. Lecture, sermon, or address.

D1. Published dramatic composition.

D2. Dramatic composition not reproduced for sale.

D3. Dramatico-musical composition.

E1. Published musical composition.

E2. Musical composition not reproduced for sale.

F. Published map.

G. Work of art (painting, drawing, or sculpture); or model or design for
a work of art.

H. Reproduction of a work of art.

I. Drawing or plastic work of a scientific or technical character.

J1. Photograph published for sale.

J2. Photograph not reproduced for sale.

K. Print or pictorial illustration.


AFFIDAVIT OF MANUFACTURE

{Sidenote: Affidavit for book}

32. In the case of books by American authors and all books in the
English language the application must be accompanied by an affidavit,
showing the following facts:

(1) That the copies deposited have been printed from type set within the
limits of the United States; or from plates made within the limits of
the United States from type set therein; or if the text be produced by
lithographic process or photo-engraving process, that such process was
wholly performed within the limits of the United States. Stating, in
either case, the place and the establishment where such work was done.

(2) That the printing of the text has been performed within the limits
of the United States, showing the place and the name of the
establishment doing the work.

(3) That the binding of such books has been performed within the limits
of the United States, showing the place and the name of the
establishment where the work was done. This can be omitted if the work
is unbound.

(4) That the completion of the printing of said book was on a stated
day, or that the book was published on a given date.

{Sidenote: Date of publication}

Section 62 of the copyright act defines the date of publication as "the
earliest date when copies of the first authorized edition _were placed
on sale, sold, or publicly distributed_ by the proprietor of the
copyright or under his authority."

{Sidenote: Affidavit must be under seal}

33. The affidavit may be made before any officer authorized to
administer oaths within the United States who can affix his official
seal to the instrument.

{Sidenote: Errors by applicants}

The applicant and the officer administering the oath for such affidavit
are specially requested to make sure that the instrument is properly
executed, so as to avoid the delay of having it returned for amendment.
Experience shows that among the common errors made by applicants are the
following:

Failure to write in the "venue," that is, the name of the county and
State, and to make sure that the notary's statement agrees.

Reciting a corporation or partnership as affiant. Oaths can be taken
only by individuals.

Failure to state in what capacity the affiant takes the oath, whether as
claimant, agent of the claimant, or printer. Where a corporation or firm
is the claimant, the affiant should swear as agent.

Failure to state the _exact date_ of publication or completion of
printing. The month alone is insufficient.

Failure to sign the affidavit. The signature should correspond exactly
with the name of the affiant stated at the beginning. Corporation or
firm names must not appear in this place.

Failure to obtain signature of the notary after swearing to the
contents.

Failure to obtain the seal of the notary.

Swearing before an officer not authorized to act in the place stated in
the venue.

Variance between names and dates as stated in the affidavit and the
application.

The affidavit must never be made before the day of publication.

{Sidenote: By whom affidavit may be made}

34. The affidavit may be made by: (1) The person claiming the copyright;
or (2) his duly authorized agent or representative residing in the
United States; or (3) the printer who has printed the book.

The person making the affidavit must state in which of the
above-mentioned capacities he does so.

{Sidenote: Book in foreign language}

35. In the case of a foreign author applying for a book in a language
other than English, no affidavit is required, as such books are not
subject to the manufacturing clause.

In the case of a foreign author applying for a book in the English
language, the same affidavit must be made as in that of an American
author, except where a book is deposited for _ad interim_ protection
under section 21. In such cases the affidavit must be filed when the _ad
interim_ copyright is sought to be extended to the full term.

The affidavit is only required for BOOKS.


PERIODICALS (FORM B)

{Sidenote: Periodicals}

36. Application should be made in the same manner as for books,
depositing two copies, but no affidavit is required.

Separate registration is necessary for each number of the periodical
published with a notice of copyright, and can only be made after
publication. It is not possible to register the title of the periodical
in advance of publication.


CONTRIBUTIONS TO PERIODICALS (FORM A5)

{Sidenote: Contributions to periodicals}

37. If special registration is requested for any contribution to a
periodical, _one_ copy of the number of the periodical in which the
contribution appears should be deposited promptly after publication.

The entire copy should be sent; sending a mere clipping or a page
containing the contribution does not comply with the statute.

The date of publication of a periodical is not necessarily the date
stated on the title-page. The application should state the day on which
the issue is "first placed on sale, sold, or publicly distributed,"
which may be earlier or later than the date printed on the title-page.


AD INTERIM APPLICATIONS (FORM A4)

{Sidenote: Ad interim copyright}

38. Where a book in the English language has been printed abroad, an _ad
interim_ copyright may be secured by depositing in the Copyright Office
one complete copy of the foreign edition, with an application containing
a request for the reservation and a money order for $1. Such
applications should state: (1) Name and nationality of the author; (2)
Name and nationality of the copyright claimant; (3) Exact date of
original publication abroad.

The deposit must be made within thirty days from publication abroad.
Whenever, within the thirty days' period of _ad interim_ protection, an
edition manufactured in the United States is published, and two copies
are deposited, the copyright claim therein may be registered the same as
any other book (Form A2).


MAILING APPLICATIONS AND COPIES

{Sidenote: Address of mail matter}

39. All mail matter intended for the Copyright Office should be
addressed to the "Register of Copyrights, Library of Congress,
Washington, D. C." No letters dealing with copyright matters should be
addressed to individuals in the office.

Copyright matter designed for deposit in the Copyright Office will be
transmitted by the postmaster free of charge when requested. The
postmaster will also, when requested, give a receipt for matter so
delivered to him for transmission.

No franking label is issued by the Copyright Office for this purpose.


FEES

{Sidenote: Copyright fees}

40. The fee required to be paid for copyright registration is $1, except
that in case of photographs it is only 50 cents when no certificate of
registration is desired.

{Sidenote: Remittances}

All remittances to the Copyright Office should be sent by money order or
bank draft. Postage stamps should not be sent for fees or postage.
Checks can not be accepted unless certified. Coin or currency inclosed
in letter or packages if sent will be at the remitter's risk.

Publishers may for their own convenience deposit in the Copyright Office
a sum of money in advance against which each registration will be
charged.


ASSIGNMENTS OF COPYRIGHT

{Sidenote: Assignments of copyright}

41. When a copyright has been assigned the instrument in writing signed
by the proprietor of the copyright may be filed in this office for
record within six calendar months after its execution without the limits
of the United States or three calendar months within the United States.

After having been recorded the original assignment will be returned to
the sender with a sealed certificate of record attached.

{Sidenote: Fee for recording assignment}

42. The fee for recording and certifying an assignment is $1 up to 300
words; $2 from 300 to 1,000 words; and another dollar for each
additional thousand words or fraction thereof over 300 words.

{Sidenote: Name of assignee in claim}

43. After the assignment has been duly recorded, the assignee may
substitute his name for that of the assignor in the copyright notice on
the work assigned. Such substitution or transfer of ownership will be
indexed in this office upon request, at a cost of 10 cents for each work
assigned.


NOTICE OF USER OF MUSICAL COMPOSITIONS

{Sidenote: Notice of user of music}

44. Whenever the owner of the copyright in a musical composition uses
such music in phonographs himself or permits anyone else to do so, he
must send a notice of such use by him or by any other person to the
Copyright Office to be recorded.

{Sidenote: Notice in absence of license}

45. Whenever any person in the absence of a license intends to use a
copyrighted musical composition upon the parts of instruments serving to
reproduce the same mechanically, the act requires that he shall serve
notice of such intention upon the copyright proprietor and must also
send a duplicate of such notice to the Copyright Office.


APPLICATION FOR THE RENEWAL OR EXTENSION OF SUBSISTING COPYRIGHTS

{Sidenote: Renewals and extensions}

46. Application for the renewal or extension of a subsisting copyright
(except copyright of a composite work) may be filed within one year
prior to the expiration of the existing term by:

(1) The author of the work if still living;

(2) The widow, widower, or children of the author if the author is not
living.

(3) The author's executor, if such author, widow, widower, or children
be not living;

(4) If the author, widow, widower, and children are all dead, and the
author left no will, then the next of kin.

{Sidenote: Renewal for composite work}

47. If the work be a composite work upon which copyright was originally
secured by the proprietor thereof, then such proprietor is entitled to
the privilege of renewal and extension.

{Sidenote: Renewal fee}

48. The fee for the recording of the renewal claim is 50 cents.
Application for the renewal or extension of copyright can not be
recorded in the name of an assignee nor in that of any person not
expressly mentioned in section 24 of the act.


SEARCHES

{Sidenote: Searches}

49. Upon application to the Register of Copyrights search of the
records, indexes, or deposits will be made for such information as they
may contain relative to copyright claims. Persons desiring searches to
be made should state clearly the nature of the work, its title, the name
of the claimant of copyright and probable date of entry; in the case of
an assignment, the name of the assignor or assignee or both, and the
name of the copyright claimant and the title of the music referred to in
case of notice of user.

{Sidenote: Search fee}

The statutory fee for searches is 50 cents for each full hour of time
consumed in making such search.



              AFFIDAVIT OF AMERICAN MANUFACTURE OF           A1
                       COPYRIGHT BOOK.

Fill in the required statements to accord with the facts concerning the
book named, and draw pen through such statements as are not intended to
be made.

                 State of_____________  }
                                        }  ss.
                 County of_____________ }

  Impression seal
  here
                 I,_________________________________________
                   _________________________________________
                   ____, {being duly sworn, depose}
                         {do solemnly affirm      }  and say:

(1) That I am the person claiming copyright in the book named herein.

(2) That I am the duly authorized agent or representative residing in
the United States of the claimant of copyright in the book named herein.

(3) That I am the printer of the book named herein.

I further depose and say that, in so far as required by the Act of March
4, 1909,

  the BOOK ENTITLED_________________________________________________
  __________________________________________________________________
  of which two copies have been deposited, HAS BEEN PRINTED by______

  ___________________________at_____________________________________

  from {type / plates made in the U. S. from type} set within the limits
  of the United


  States by__________________at_____________________________________;

  that the printing of the text of the said book was completed on___,

  19__; that the said book was published on________________, 19_____;
  that the BINDING of the said book has been performed within the limits
  of the

  United States by___________at_____________________________________.

                      (Signature)___________________________________

  Subscribed and {sworn to} before me this______day of________, 19__.
                 {affirmed}
                            _________________________________________
  Place seal at
  top of page               _________________________________________
                                                              [OVER]


                                     A1 | *
                    Name of claimant    | 2 c. rec'd__________
                                        |
  ______________________________________|_____________________
                    Author and title    | Affidavit
                                        |     rec'd___________
  ______________________________________|
                                        | Cl. A, XXc.  No.____
  ______________________________________|
   Leave all above these lines blank    | $____Cash No._______
  ============================================================

        APPLICATION FOR COPYRIGHT--BOOK BY CITIZEN OR
               RESIDENT OF THE UNITED STATES.

  REGISTER OF COPYRIGHTS, WASHINGTON, D. C.    ________Date.

  Of the BOOK named herein, first published after June 30, 1909, TWO
  complete copies of the best edition published on the date stated
  herein are hereby deposited to secure copyright, accompanied by the
  AFFIDAVIT required by section 16 of the Act of March 4, 1909, that the
  book has been produced in accordance with the manufacturing provisions
  specified in section 15 of the said Act. $1 (statutory fee for
  registration) is also inclosed. The copyright is claimed by the
  undersigned:

  Name and address of {_________________________________________________
  copyright claimant  {_________________________________________________

  Author or
  authors_______________________________________________________________

  If the work is anonymous or pseudonymous, it is not obligatory to
  state the name of the author.

  ======================================================================

  Title of book_________________________________________________________
  ______________________________________________________________________
  ______________________________________________________________________
  ____vol.____  Price, $____.   Date of publication____________ [Must be
    [Date when placed on