Copyright: Its History and Its Law Part 37

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 pa.s.sed special acts, covering specific cla.s.ses, 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 a.s.sembly; 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 pa.s.sed 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 t.i.tles 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 cla.s.ses 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 pa.s.sage 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 t.i.tle, if in ma.n.u.script, 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 pa.s.sed 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 publis.h.i.+ng within France, and copyright was perpetual up to the abrogation by the National a.s.sembly in 1789 of all privileges previously granted. Though two acts regarding dramatic performances (_spectacles_) were pa.s.sed in 1791, it was not till 1793 that the National Convention pa.s.sed 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 pa.s.sed, 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 j.a.pan (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 a.s.signed 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 pa.s.sed 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 ill.u.s.trations, 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 pa.s.sed 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 pa.s.sed 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 pa.s.sed 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 authors.h.i.+p, 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 ill.u.s.trations, the author of each part is regarded as originator of his separate work; in inseparable composite works, a partners.h.i.+p 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 Munic.i.p.al Council of Leipzig for a fee of a mark and a half (36 cents) and expense of official publication originally in the _Borsenblatt_, but since a law of 1903 in the _Reichsanzeiger_. Translations, adaptations, etc., are protected as original works. Official doc.u.ments, 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 ent.i.tled 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 a.s.semblage, 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.