Copyright: Its History and Its Law Part 29

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 t.i.tle, the name of the claimant of copyright and probable date of entry; in the case of an a.s.signment, the name of the a.s.signor or a.s.signee or both, and the name of the copyright claimant and the t.i.tle 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 inst.i.tution, 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 s.h.i.+lling 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 pa.s.sed 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 ent.i.tled only to the protection afforded to natives. In Hanfstaengl _v._ Holloway, in 1893, Justice Charles took the opposite view, and he was supported by the Court of Appeal in Hanfstaengl _v._ American Tobacco Company, in 1894, which decided finally that the acts of 1842 and 1844 were repealed as to foreign works and that registration and deposit of a foreign work were unnecessary. The decision of the Court of Appeal in 1908, in Sarpy _v._ Holland, that notice of reservation may be in foreign languages, confirmed the provisions that no formalities beyond those in the country of origin were requisite.

{Sidenote: Effect of Berne convention}

With the development of the International Copyright Union, through the Berne convention of 1886, copyright relations between the leading countries became more largely and truly international, and most of the existing treaties of the unionist countries were superseded by the international convention proper. In accordance, however, with the terms of the convention, treaties broader than the provisions of the convention might still remain in force or be later negotiated between one country and another, and such conventions, on the "most favored nation" basis or otherwise, have in fact been negotiated, especially by Germany, within the present century. The arrangement for protection of foreign works in unionist and other countries, under special treaties, will be found in succeeding chapters on copyright in foreign countries, where treaties broader than the international convention or made since 1900 are also scheduled. The main features of international copyright arrangements are tabulated in condensed form in the conspectus of copyright by countries given in the preliminary pages.

{Sidenote: International literary congresses}

At the time of the Universal Exposition in Paris in 1878, the French _Societe des Gens de Lettres_ issued invitations for an International Literary Congress, which was held in Paris, under the presidency of Victor Hugo, commencing June 4, 1878. From this came the _a.s.sociation Litteraire et Artistique Internationale_, which held subsequent congresses at London in 1879, at Lisbon in 1880, at Vienna in 1881, at Rome in 1882, at Amsterdam in 1883, at Brussels in 1884, and at Antwerp in 1885, at which the extension of international copyright was discussed and advocated.

{Sidenote: Fundamental proposition}

The Congress at Antwerp, in 1885, ratified the following proposition: "The author's right in his work const.i.tutes 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 a.s.sociation 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 a.s.sociation, 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 accomplis.h.i.+ng 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 ma.n.u.script or unpublished works.

"4. The legal representatives and a.s.signees 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 doc.u.ments 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 ma.n.u.script, 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.