Copyright: Its History and Its Law Part 35

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 a.s.sociation, giving a careful a.n.a.lysis 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: Pa.s.sage 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 pa.s.sed 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 pa.s.sed by the House was brought before the Senate, briefly discussed, and pa.s.sed. 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 pa.s.sed 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 citizens.h.i.+p; 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 ent.i.tled 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 ent.i.tled 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 circ.u.mstances 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 publis.h.i.+ng of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmans.h.i.+p, 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 authors.h.i.+p 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: Owners.h.i.+p}

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 a.s.signment in writing a.s.sign 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 a.s.signment 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 cla.s.ses 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 owners.h.i.+p 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 s.h.i.+llings 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 pa.s.s 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 cla.s.ses 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 owners.h.i.+p and term were introduced in the Committee stage. The word "infringing" was subst.i.tuted 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}