Copyright: Its History and Its Law Part 27

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 cyclopaedia contained copyrighted contributions by American authors, such cyclopaedia 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 ent.i.tled 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 s.e.x" series, by Dr. Sylva.n.u.s 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 a.s.sociations or academies, or publications of individuals for gratuitous private circulation, and public doc.u.ments 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 inst.i.tution 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 const.i.tutes 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 circ.u.mstances 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 cla.s.ses. 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 pa.s.sed 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 a.s.sent 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 a.s.signed 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 Was.h.i.+ngton, 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 a.s.sistant 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 cla.s.s designation, with its accession or sequence number in that cla.s.s, 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 cla.s.s number and the t.i.tle 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 a.s.sistant 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. Acc.u.mulations of the past years and current accessions were until recently stored in the sub-bas.e.m.e.nt of the Library of Congress building, but a new stack now furnishes abundant and well-lighted s.p.a.ce 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.