Copyright: Its History and Its Law Part 4

{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, pa.s.sed 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 ent.i.tled 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 ma.n.u.script 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, publis.h.i.+ng, completing, copying, executing, finis.h.i.+ng, 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 ent.i.tled 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 ma.n.u.script 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 pa.s.s by inheritance,--as pointed out by Arthur Steuart, chairman of the Copyright Committee of the American Bar a.s.sociation, 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 trespa.s.s 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 cla.s.s 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 "_edition partagee_," 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 t.i.tle 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: a.n.a.lysis 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 a.n.a.lyzed 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 a.s.sign 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 a.s.signee. 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 pa.s.s 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 ma.n.u.script or the copyrighted work may pa.s.s 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 publis.h.i.+ng 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}