m OlorttpU Slam ^rliool ICtbrarg KF 2994.87™"""'""'""-"'^''^ iii?ni MiSmi'iii'* •''s*°''y and "ts law :bein 3 1924 019 216 989 DATE DUE ^ _^ ^ : ^^ r?5^^^™ ^9''Pp^ "^ \!^V QffiM tfem ^^Kskst^ GAVLOHD PRINTED IN U.SA Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019216989 /3 i^. Eitl^arlr Eog;er« ^atofcet COPYRIGHT: ITS HISTORY AND ITS LAW. THE ARTS OF LIFE. OF BUSINESS. OF POLITICS. OF RELIGION. OF EDUCATION. HOUGHTON MIFFLIN COMPANY Boston ahd New Yokk mnih UNIVERSITY May 2o J9I2 LAW LIBRARY. COPYRIGHT ITS HISTORY AND ITS LAW COPYRIGHT ITS HISTORY AND ITS LAW BEING A SUMMARY OF THE PRINCIPLES AND PRACTICE OF COPYRIGHT WITH SPECIAL REFERENCE TO THE AMERICAN CODE OF 1909 AND THE BRITISH ACT OF 191 1 BY RICHARD ROGERS BOWKER BOSTON AND NEW YORK HOUGHTON MIFFLIN COMPANY 1912 COPYRIGHT, I9IS, BY R. R. BOWKEK ALL RIGHTS RESERVED FOR ALL COUNTRIES Published March iqis FOREWORD The American copyright code of 1909, comprehen- Copyright sively replacing all previous laws, a gratifying advance Progress in legislation despite its serious restrictions and minor defects, places American copyright practice on a new basis. The new British code, brought before Parlia- ment in 1910, and finally adopted in December, 1911, to be effective July i, 1912, marks a like for- ward step for the British Empire, enabling the mother country and its colonies to participate in the Berlin convention. Among the self-governing Dominions made free to accept the British code or legislate inde- pendently, Australia had already adopted in 1905 a complete new code, and Canada is foUoAving its ex- ample in the measure proposed in 191 1, which will probably be conformed to the new British code for passage in 1912. Portugal has already in 191 1 joined the family of nations by adherence to the Berlin con- vention, Russia has shaped and Holland is shaping domestic legislation to the same end, and even China in 19 10 decreed copyright protection throughout its vast empire of ancient and reviving letters. The Berlin convention of 1908 strengthened and broadened the bond of the International Copyright Union, and the Buenos Aires convention of 191 o, which the United States has already ratified, made a new basis for copy- , right protection throughout the Pan American Union, both freeing authors from formalities beyond those re- quired in the country of origin. Thus the American dream of 1 838 of " a universal republic of letters whose foundation shall be one just law" is well on the way toward realization. VI FOREWORD Field for the present treatise Authorities and ackow- ledgments In this new stage of copyright development, a com- prehensive work on copyright seemed desirable, es- pecially with reference to the new American code. Neither Eaton S. Drone nor George Haven Putnam were disposed to enter upon the task, which has there- fore fallen to the present writer. He hopes that his participation for the last twenty-five years in copy- right development, — during which, as editor of the Publishers' Weekly and of the Library Journal, he has had occasion to keep watch of copyright progress, and as vice-president of the American (Authors) Copyright League, he has taken part in the copyright conferences and hearings and in the drafting of the new code, — will serve to make the present volume of use to his fellow members of the Authors Club and to like craftsmen, as well as to publishers and others, and aid in clarifying relations and preventing the waste and cost of litigation among the coSrdinating factors in the making of books and other forms of in- tellectual property. The present work includes some of the histori- cal material of the Bowker-Solberg volume of 1886, "Copyright, its law and its literature." This mate- rial has been verified, extended and brought up to date, especially in the somewhat detailed sketch of the copyright discussions and legislation resulting in the "international copyright amendment" of 1891 and the code of 1909. The volume is in this respect prac- tically, and in other respects entirely new. It has had the advantage of the cordial co-operation of the copy- right authorities at Washington, especially the Libra- rian of Congress, Herbert Putnam, and the Register of Copyrights, Thorvald Solberg; also of helpful courtesy from the Canadian Minister of Agriculture in the recent Laurier administration, Sidney Fisher, and the Canadian Registrar of Copyrights, P. E. Rit- FOREWORD vii chie, and of Prof. Ernest RSthlisberger, editor of the Droit d'Auteur, and one of the best authorities on in- ternational copyright. This acknowledgment of ob- ligation is not to be taken as assuming for the work official sanction and authority, though so far as prac- ticable, it reflects the opinions of the best authorities. The writer has also consulted freely— but it is hoped always within the limits of "fair use " — the best law- book writers, especially Drone, Copinger, CoUes and Hardy, and MacGillivray, to whom acknowledgment is made in the several chapters. Acknowledgment is also made for the courtesies of Sir Frederick Mac- millan, G. Herbert Thring, secretary of the British Society of Authors, and others numerous beyond nam- ing. But most of all the writer is indebted to the intelligent and capable helpfulness of Carl L. Jelling- haus, who as private secretary, has been both right hand and eyes to the writer, and besides participat- ing in the work of research, is largely responsible for the index and other "equipment" of the volume. Copyright law is exceptionally confused and con- Method and fusing, and even the new American and British codes *°™* are not without such defects. Specific subjects are so interdependent that it has been difficult to make clear lines of division among the several chapters, and there is necessarily repetition; it has been the en- deavor to concentrate the main discussion in one place, designated in the index by black face figures, with subordinate references in other chapters. Am- biguities in the text of this volume often reflect am- biguities in the laws, particularly of foreign countries. Where acts, decisions, etc., are quoted in the text or given in the appendix, spelling, capitalization, punc- tuation, headings, etc., follow usually the respective forms, thus involving apparent inconsistencies. Side- headings in the appendix follow usually the official viii FOREWORD form, unless shortened to prevent displacement. Translations of foreign conventions follow usually the official text of the translation, but have been cor- rected or conformed in case of evident error or vari- ance. Citation of cases is confined for the most part to ruling or recent cases or those of historic import- ance or interest. Though it has not been practica- ble to verify statements from the copyright laws of so many countries in divers languages, a fairly compre- hensive and accurate statement of the status of copy- right throughout the world is here presented. The present work, originally planned for publication in 1910, has been held back and alterations and inser- tions made to bring the record of legislation to the close of 191 1. For those who wish to keep their copy- right knowledge up to date, the Publishers' Weekly will endeavor to present information as to the Eng- lish speaking world, and the monthly issues of the Droit d'Auteur of Berne, under the editorship of Prof. Rothlisberger, will be found a comprehensive and adequate guide. Advocates of The preparation of this work brings a recurring auttiors' sense of the losses which the copyright cause has suf- fered during the long campaign for copyright reform, beginning in the American Copyright League, under the presidency of James Russell Lowell, and con- tinued under that of Edmund Clarence Stedman, both of whom have passed over to the majority. Bron- son Howard, always active in the counsels of the League as a vice-president, and the foremost advo- cate of dramatic copyright as president of the Ameri- can Dramatists Club, failed, like Stedman, to see the fulfillment of his labors in the passage of the act of 1909. George Parsons Lathrop, Edward Eggleston, Richard Watson Gilder, " Mark Twain " and other ar- dent advocates of the rights of the author, gave large FOREWORD ix share of enthusiasm and effort to the cause. Happily the two men who for the last twenty years and more have labored at the working oar for the Authors League and for the Publishers League, are still ac- tive in the good work, ready to defend the code against attack and eager to forward every betterment that can be made ; to Robert Underwood Johnson, the successor of the lamented Gilder as editor of the Century, and to George Haven Putnam, the head of the firm which still bears the name of his honored father, authors the world over owe in great measure the progress which has been made in America toward a higher ideal for the protection of authors' rights. It may be noted that while throughout the British Copyright Empire English precedent is naturally followed, the evolution more restrictive American copyright system has un- fortunately influenced legislation in Canada and New- foundland, and in Australia. France, open-handed to authors of other countries, has afforded precedent for the widest international protection and for the in- ternational term; while Spain, with the longest term and most liberal arrangements otherwise, has been followed largely by Latin American countries. The International Copyright Union has reached in the Berlin convention almost the ideal of copyright legis- lation, and this has been closely followed in the Bue- nos Aires convention of the Pan American Union, The world over, there seems to have been a general evolution of copyright protection from the rude and imperfect recognition of intellectual property as cog- nate to other property, for a term indefinite and in a sense perpetual, almost impossible of enforce- ment in the lack of statutory protection and penalties. Systems of legislation, at first of very limited term and of restricted scope, have led up to the comprehen- sive codes giving wide and definite protection for all X FOREWORD classes of intellectual property for a term of years ex- tending beyond life, with the least possible formali- ties compatible with the necessities of legal procedure. Unfortunately in the United States of America the forward ' movement which produced the "interna- tional copyright amendment" of 1891 and the code of 1909, conspicuously excellent despite defects of detail, was in some measure offset by retrogression, as in the manufacturing restrictions. Until this policy, which still remains a blot on the 'scutcheon, is aban- doned, as the friends of copyright hope may ulti- mately be the case, the United States of America cannot enter on even terms the family of nations and become part of the United States of the world. R. R. BOWKER, December, 191 1. Postscript. Since this book has been passing through the press, Cuba has been added to the countries in recipro- cal relations with the United States with respect to mechan- ical music by the President's proclamation of November 27, 191 1 ; Russia has made with France its first copyright treaty, in conformity with the new Russian code of 191 1; and the new British code, referred to on p. 33, having passed the House of Commons August 17, passed the House of Lords December 6, and after concurrence by the House of Commons in minor amendments, mostly verbal, became law by Crown approval, December 16, 191 1, as noted on p. 374. The text of the act in the appendix fol- lows the official text as it now stands on the English statute books; the summary (pp. 374-80) describes the act as it became law — and the earlier references are in accordance therewith, with a few exceptions. These exceptions mostly concern immaterial changes, made in the House of Lords. Within January, 1912, Brazil has adopted a new measure for international copyright, and a treaty has been signed between the United States and Hungary, the twenty-fifth nation in reciprocal relations with this country. CONSPECTUS OF COPYRIGHT BY COUNTRIES Under the names of countries are given dates of the basic and latest amendatory laws. International relations are shown by the name in suall caps of the convention city where a country is a party to the International Copyright Union or the Pan American conventions, and by the names of countries with which there are specific treaties, excepting those within the union or conventions. The general term of duration is entered, without specification of special terms for specific classes. Places of registration and deposit are indicated by R and D when these are not the same. The number of copies required and in some cases period after publication within which deposit is required are given in parentheses. Notice of cop3Tight or of reservation is indicated. Special exceptions or conditions are noted so far as practicable under remarks. An asterisk indicates that specific exceptions exist. The International Copyright Union includes (A) under the Berlin convention, igo8 (a) without reservation Germany, Belgium, Luxemburg, Switzerland, Spain, Monaco^, Liberia, Haiti, Portugal, and (b) with reservation France, Norway, Tunis, Japan; (B) under the Berne convention, i8S6, and the Paris additional act and interpretative declaration, iSg6, Denmark, Italy; (C) under the Berne convention. iS86, and the Paris additional act, 1S96, Great Britain; (D) under the Berne convention, 1886, and the Paris interpretative declaration, x8g6, Sweden. The Pan American conventions agreed on at Mexico City, igo2, Rio de Janeiro, 1906, and Buenos Aires, 1910, have not been ratified except that of Mexico by the United States and by Costa Rica, Guatemala, Honduras, Nicaragua, Salvador, and doubt- fully by Cuba and Dominican Republic ; that of Rio by a few states insufficient to make it any-where operative; and that of Buenos Aires by the United States. The South American convention of Montevideo, 1889, has been accepted by Argentina, Paraguay and Uruguay, Peru and Bolivia, and has the adherence (in relation with Argentina and Paraguay only) of Belgium, France, Italy and Spain. The five Central American states have a mutual con- vention through their Washington treaty of peace of 1907. Countries Dates of laws International relations Duration Registration and Deposit Notice Remarks North America (Engush- sfeaeing) United States Mexico.B.Aises, 28 + 28 Library of "Copy- Manufac- 1909 Gt. Brit., Belg., Congress (2 right, ture within China. Den., Fr., "promptly") 19—, by U. S. for Ger., It., Jap., A. B."or books, etc. Lux., Nor., statutory Sp., Swe., Switz., equivalent Aust., Hoi., Port., Chile, Costa R., Cuba, Mex. Canada See Gt. Brit.* 28 + 14 Dept. of "Copy- Printing and publ. i875-igo8 (Aus. Hung. Agriculture: right, Il9I2?l excepted) Copyright Canada within Branch (3) A. B."or signature of artist Newfoundland See Gt. Brit. 28 + 14 Colonial "Entered, Printing and pabk 1890-1899 Sec. (2) Newf by A. B." withm etc. or Newf.' signature of artist Canal Zone (U. S.) SetV.S. ■ Porto Rico (TJ. S.) Set U. S. Jamaica (Br.) See Gt. Brit. Life+7 (3 or I • None 1887 or 42 • within mo.) Trinidad (Br.) See Gt. Brit. Life + 7 Registrar of None 1888 or 42 • copyright (3withmmo.) North America: English Xll CONSPECTUS BY COUNTRIES Countries Dates of laws Europe: English French Gennan Scandina- vian Russian Southern Europe Great Britain Ireland D x842-igo6 I 1844-1886 [191 1] Isle of Man IQ07 Channel Isles Fiance 1793-1910 Belgium 188S Luxemburg iSgS Holland 1881 [1912?] Gennany zpoi-igio Austna 180S. 1907 Hungary 1S84 Switzerland 1874. 1S83 Denmark 1S6S-1911 Iceland (Den.) Norway 1877-1910 Sweden 1897-1908 Russia 1911 Finland 1880 Spain 1879-189S Portugal 1867, 1886 Italy 1882, i88g, xgio International relations Berh£-Fabis a U. S., Aus.- Hung.* See Gt. Brit. See Gt. Brit. BEaLIN'MoNTV." U.S.,Aus.-Hung., Hoi., Port., Mont., Roum,, Lat. Amer. Bekuh, Montv.* U. S., Aus., Hoi., Port., Roum., Mex. Berlin U.S. U. S., Belg., Fr. U. S., Aus.-Hung. Hung., U. S., Gt. Brit.,' Belg., Den., Fr., Ger., It., Roum., Swed, Aust., Gt. Brit.,* Fr., Ger., It. Berlin U.S. Berne-Pasis U. S., Aus. See Denmark Berlin' U.S. Beene-Paris D U. S., Aus. - France None Berlin, Montv.* U. S., Port., Lat. Amer. Duration Life + 7 or 42 • [Life + so'l ,Sp., Berlin U. S.,It., Bra. Bern^Paris Montv.' U. S., Aus.- Hung., Mont., Port., Roum., San. Mar., Lat. Amei. Life + so' Life + 50 Life + so' SO or life • Life + 30' Life +30' Life + so' Life +30' Life + so ' Life + so' Life + so' Life + so' Life + so' Life + 80 ' Life + so' Life 01 40 ' + 40' Registration and Deposit R Stationers HaU (before suit)' D British Museum (i) + 4 library copies (on demand) * D Ministry of Interior or prefec- ture (2 be- fore suit) * None* None' Dept. of Justice (3 within mo.) None' None' None ' R Office of Intel. Prop, optional * None ' None- None None* Register of Intel. Prop. (3 within one year •) Pub. Lib.' (2 before ^"r^iture (3 within 3 months) ' Notice None' [None] [No regis- tration] None None' None (res.playr.) None • (res. trans., playr.) None ' None ' (res. trans, photos, mus.) None (res. trans, photos) None (res. playr.) None' (photos, res. music) None • (photos, res. music) None • (photos, res. playr. None ' (photos,res. trans mus.) None' None • Remarks First or simulta- neous pub- lication [In eSect 1912I Printing within Holland None None ' (res. trans.) As in Den- mark Special provisions Added 40 yrs. on royalty of S p. c CONSPECTUS BY COUNTRIES xiii Countries Dates of laws International relations Duration Registration and Deposit Notice Remarks San Marino 5m Italy As in Italy Europe: Monaco l88g, iggS Beeun Life + so* None None* Minor Greece None IS+* D (4 within States 1833-1910 10 days •) Malta, (^prus, etc. See GU Brit. Life + 7 D (3 within (Br.) or 42* mo.) Montenegro Fr., It. Uncertain Bulgaria protection Uncertain Balkan 1896? protection States Servia No protec- tion Roumania Aus., Belg., Fr., Life + 10 R. Min. of 1862-1904 It. Instruc. Turkey None Life + 30 * Min. of Pub. None. igio Instruc. (3) • Asia Japan Bekiis' Life +30* R Minis- None* Asia 1899, 1910 U. S., • China try of Int. (before suit) Korea 5« Japan As in Japan 1908 China U. S., • Japan Life +30* iWiTiist.Ty 01 1910 Int. (2) Hong-Kong (Br.) See Gt. Brit. Life + 7 or 42 • D (3 within mo.) Philippines (U. S.) See U. S. India, British See Gt. Brit. Life + 7 D(3 Printer's 1847, 1867 or 42 * withm mo.) and pub- lisher's name on work Ceylon, etc. (Br.) See Gt. Brit. Life + 7 or 42 * D (3 within mo.) (4 Siam None Life + 7 within yr.) 1901 Persia None or 42 * No protec- tion Africa Africa Egypt None Indefinite Court protection Tunis Beklin* Life + 50* As in France 1889 Algeria (Fr.) See France Sierra Leone, etc. See Gt. Brit. Life + 7 D(3)* ^'•' », or 42 * 1887 Liberia Bf.ST.nj Indefinite Without specific law Cnngo Free State Belg., Fr. {extradition) Punishes fraud only So. Africa (Br.) See Gt. Brit.* Aus.-Hung., Cape Colony excepted Life + 5 Registrar of 1873-189S or 30* Deeds D (4 within mo.) * Natal Life + 7 Colonial i89S-r898 or 42 • Sec., D (2 within 3 mos.)* Transvaal, etc. SO or life • Registrator D (3 within Reserv. of PriLting 1887 playr. and within 3 mos.) * trans. colony ! (? xiv CONSPECTUS BY COUNTRIES Countries Dates of laws International relations Duration Registration and Deposit Notice Remarks America, Latin: Latin America Mexico U. S., Dom. Perpetu- R. Min. None* 1871, 1884 Rep.,Ecu.,Belg., ity* Pub. Instruc. Mexico Fr., It., Sp. D(2)' Central Costa Rica Mexico Life + so • OflSceof None 1880-Z896 U. S., Sp., Ft. Pub. Libs. America Guat., Sal., Hon. within yr.) * Guatemala Mexico Perpetuity Min. of Pub. (res. trans.) 1879 Sp., Fr., Costa R. Educ. (4)' Honduras Mexico Indefinite No specific 1894, l8g8 Costa R. law Nicaragua Mexico Perpetu- Min. of (res. trans.) 1904 It. ity* Agric.(6') Salvador Mexico Lile + as ' D Min. of None Publication 1886, igoo Sp., Fr., Costa R. Agric. (z before pub.) within country None Life -1-80 As in 1904 Colombia West Cuba Mexico? Life -1- 80 • Dept. of None Indies 1879-1909 U. S., It. State (3) Haiti Beklih Life-)-- D Dept of None 188s Int., (s within yr.) Dominican Rep. 1896 Brazil Mexico ?Mex. Uncertain South Portugal so * from Nat. Lib. (i None* America 1891-1901 the ist Jan. ofyr.ofpub. within 2 yrs.) (ies.playr.) Argentina Life + 10 • Nat. Lib. None' 1910 Belg., Sp.,rr.,It. (2 within 15 or 30 days) Uruguay Montevideo Indefinite No spe- 1868 cific law Paraguay MOHTEVmEO Public Under 1870, 1881, 1910 Belg., Sp., Fr., It. registries penal code Chile U.S. Lif e 4- s • D Nat. Pub. None 1833-1874 Lib. (3)* Peru Montevideo Life-)- 20 • D Pub. Lib. None 1849, z86o (i) + Dept. Pref. (i) BoUvia Montevideo Life-)- 30' R Min. of 1834, 1909 Fr. Pub. Instruc. D Pub. Lib. (i within yr.) Ecuador Sp., Fr., Met Life-i- so • Min. of None' 1884, 1887 Pub. Educ. (3 within 6 mos.)* (res. playr.) Colombia Sp., It. Life-)- 80 » Min. of None 1886, 1890 Pub. Educ. (3 within Venezuela None. Perpetuity vr )* Registry (6) Notice of , 1894, 1897 patent Australasia Australasia Australia (Br.) See Gt. Brit.' Life-)- 7 Common- Reserv. 190S Aus.-Huiig. 0142 • wealth perform- ing right excepted Copyr. Of- fice D (:) New Zealand (Br.) See Gt. Brit. 38 or life ' R Registrar 1843-1903 of Coprs.* D libr. of Gen. Assem. (for plays only) Hawaii (U. S.) See U. S. CONTENTS PART I Nature and Development of Copyright I. The Nature and Origin of Copyright 1-7 Copyright meaning, i — Its two senses, i — Blackstone, 2 — Property by crea- tion, 3 — Property in unpublished works, 4 — The question of publication, 5 — Inherent right, 5 — Statutory penalties, 6 — Statute of Anne, 6 — Supersedure of common law right, 7. II. The Early History of Copyright 8-23 In classic times, 8 — Roman law, 8 — Monastic copyists, 8 — St. Columba and Finnian, 9 — University protection, 9 — Invention of printing, 10 — In Germany, 10 — In Italy: Venice, 13 — Florence, 17 — Control of Church, 17 — In France, 17 — In England, 19 — The Stationers' Company, 21 — Statutory provisions, 22. III. The Development of Statutory Copyright in England . . 24-34 The Statute of Anne as foundation, 24 — Its relations to common law, 24 — The crucial case, 25 — The Judges' opinions, 25 — The Lords' decision, 26 — Protests, 26 — Supplementary legislation, 26 — Georgian period, 27 — Legislation under William IV, 28 — Victorian act of 1842, 28 — Protection of designs, 29 — Sub- sequent acts, 29 — Royal Commission report of 1878, 30 — Later legislation, 31 — International copyright, 31 — Musical copyright, 31 — Conference reports, 1909, 32 — Act of 191 1, 32 — Design patents, 33 — Common law rights, 34. IV. The History of Copyright in the United States .... 35-41 Constitutional provision, 35 — Early state legislation, 35 — Act of 1790, 35 — 1802-1867, 36 — Revised act of 1870, 37 — 1874-1882, 37 — International copyright legislation, 1891, 37 — Private copyright acts, 38 — American posses- sions, 38 — American code of 1909, 39 — State protection of playright, 39 — Trade- Mark act, 40 — Common law relations, 40. PART II Literary and General Copyright V. Scope of Copyright: Rights and Extent 42-62 General scope, 42 — American provisions, 42 — Oral addresses, 42 — Dramas, 42 — Music, 43 — Previous American law, 43 — Unpublished works, 43 — xvi CONTENTS Common law scope, 44 — Common law in U. S. practice, 44 — Statutory limita- tions, 44 — General rights, 45 — Inferential rights, 46 — Differentiated rights, 46 — Court protection, 46 — Division of rights, 46 — Analysis of property rights, 47 — Broad interpretation, 48 — Limits of protection, 48 — Differentiated con- tracts, 48 — Enforcement in limited grants, 49 — Copyright as monopoly, 50 — Altered theory of copyright, 52 — Publishing, 52 — ^What constitutes publishingj 53 — "Privately printed" works, 53 — Copying, 53 — Vending, 54 — Control of sale, 54 — Macy cases, 55 — Bobbs-Merrill case, 56 — Scribner case, 56 — English underselling case, 57 — Suits under state law, 57 — Translating, 58 — "Other version," 58 — Translating term, 58 — Oral delivery, 59 — "Publicly and for profit," 59 — Material and immaterial property, 60 — Schemes not copy- rightable, 61 — New British code, 61 — Foreign statutes, 62 — International pro- visions, 62. VI. Subject-Matter of Copyright: What may be Copyrighted . . 63-94 Subject-matter in general, 63 — Classification, 63 — Prints and labels excluded, 64 — All the writings of an author, 64 — Component parts, 64 — Compilations, new editions, etc., 64 — Non-copyrightable works, 65 — Government use, 65 — "Author" and "writing" definitions, 66 — Interpretation by Congress and courts, 66 — Supreme Court decisions, 67 — Originality and merit, 68 — " Book ' ' definitions, 68 — Blank books, 72 — Combinations and arrangements, 73 — Advertisements, 73 — New editions, 75 — Copyright comprehensive, 76 — Non-copyrightable parts excepted, 76 — Book illustrations, 77 — Translations 77 — Translator's rights, 78 — English practice, 79 — Translations in interna- tional relations, 79 — Foreign translators, 79 — Abridgments, 80 — Compila- tions, 81 — Collections, 81 — Titles, 82 — Changed titles, 82 — Titles as trade- marks, 83 — "Chatterbox" cases, 84 — Projected titles, 85 — Projected works not copyrightable, 86 — Immoral works, 86 — Periodicals, 87 — Definition of periodicals, 87 — Periodicals under manufacturing clause, 88 — Periodicals copyrightable by numbers, 88 — News, 89 — British periodicals, 90 — Oral works, 90 — Newspaper reports,9i — Lectures in England, 91 — Letters, 91 — Designs patentable, 93 — Foreign practice, 94 — International definition, 94. VII. Ownership of Copyright: Who may secure Copyright . . 95-113 Persons named, 95 — The author primarily, 95 — Claimant's right to register, 96 — Employer as author, 97 — Implied ownership, 98 — Protection outside of copyright, 98 — Work in cyclopaedias, 99 — Association of author's name, 100 — Added material and alteration, loo — Separate registration of contributions, 100 — Anonymous works, loi — Joint authorship, loi — Corporate bodies, 102 — Posthumous works, 102 — Peary cases, 102 — Renewal rights, 104 — Assign- ments, 104 — Assignment record, 105 — Substitution of name, 105 — Witnesses, 106 — "Outrights" and renewal, 106 — Proof of proprietorship, 107 — Foreign citizens, 107 — Earlier provisions, 108 — Residence, 108 — Intending citizens, 109 — Time of first publication, 109 — Non-qualified authors, no — Foreign ownership, in — " Proclaimed " countries, in — Buenos Aires convention, 1 13 — New British code, 113 — Foreign practice, 113. CONTENTS xvii VIII. DtJSATioN OF Copyright: Term and Renewal .... 114-124 Historic precedent, 114 — Previous American practice, 114 — Term in code of 1909, 115 — Renewal, 115 — Extension of subsisting copyrights, 116 — Assignee of unpublished manuscripts, 116 — Extension of subsisting renewals, 117 — Publishers' equities, 117 — Estoppel of renewal, 118 — Life term and beyond, 118 — Unpublished works, 119 — Publication as date of copyright, 119 — Serial publication, 120 — Joint authorship, 120 — Forfeiture, 121 — Abandonment, 121 — In England, I2i — New British code, 122 — Perpetual copyright, 123 — Other countries, 124 — International standard term, 124 — Special categories, 124. IX. Formalities of Copyright: Publication, Notice, Registra- tion AND Deposit 125-152 General principles, 125 — Previous American requirements, 125 — Present Ameri- can basis, 126 — Provisions of 1909, 126 — Publication, 126 — Copyright notice, 127 — Previous statutory form, 128 — Exact phraseology required, 128 — Name, 129 — Date, 129 — Accidental omission, 130 — Place of notice, 131 — One notice sufficient, 131 — Separate volumes, 132 — Different dates, 133 — Extraterritorial notice, 133 — Successive editions, 134 — False copyright notice, 134 — Ad interim protection, 135 — Substitution of name, 135 — Registration, 136 — Rules and regulations, 136 — Application, 136 — Certificate, 136 — Application requirements, 137 — Illustrations, 138 — Periodicals, 138 — Appli- cation cards, 139 — Certificate cards, 140 — Fees, 141 — Deposit, 142 — Frag- ment not depositable, 143 — Type-writing publication and deposit, 143 — Legal provisions, 143 — Failure to deposit, 144 — Forfeiture by false affidavit, 144 — Works not reproduced, 144 — Second registration, 145 — Free transportation in mail, 145 — Loss in mail, 145 — Foreign works, 146 — Ad interim deposit, 146 — Completion of ad interim copyright, 147 — Omission of copyright notice, 148 — Books only ad interim, 148 — Exact conformity required, 149 — Expunging from registry, 150 — British formalities, 150 — New British code, 151 — Other countries, 151 — International provisions, 152. X. The American Manufacturing Provisions 153-161 Manufacturing provision of 1891, 153 — Text in 1909 code, 153 — Scope and exceptions, 154 — Changes, 1891-1909, 154 — German-American instances, 155 — Dramas excepted, 155 — Exception of foreign original texts, 156 — Excep- tion of foreign illustrative subjects, 156 — 'Affidavit requirement, 1 56 — Avoidance of errors, 157 — Forfeiture by false affidavit, 158 — Exact compliance necessary, 158 — Importation questions, 159 — Foreign manufacturing provisions, 160 — English patent proviso, 161. PART III Dramatic, Musical and Artistic Copyright XI. Dramatic and Musical Copyright, Including Playright . 162-201 Dramatists' and composers' rights, 162 — American provisions, 162 — Rights assured, 163 — Dramatic rights, 163 — Musical rights, 164 — Excepted perform- xviii CONTENTS ance, 164 — Performance "for profit," 165 — Works not reproduced, 166 — Copy- right notice, 166 — Dramatico-musical works protected from mechanical reproduc- tion, 1 66 — Dramatic and musical works excepted from manufacturing provisions, 167 — British colonial practice, 168 — Entry under proper class, 168 — Applica- tion and certificates, 168 — Right of dramatization, 169 — Dramatization term, 169 — Musical arrangements, 169 — Transposition, 170 — Works in the public domain, 170 — Dramatization right protected, 170 — English law and practice, 171 — Infringement cases, 172 — Substantial quotations, 173 — Specific scenes or situations, 174 — What is a dramatic composition, 174 — Judge Blatchford's opinion, 175 — Judicial definitions, 175 — Moving pictures, 176 — Literary merit not requisite, 177 — What is a dramatico-musical composition, 177 — Protection of playright, 178 — Protection of unpublished work, 179 — Indeter- minate protection, 180 — Printing and performance, 180 — Specific English provisions, 182 — Publication prior to performance, 183 — British international protection, 184 — What is public performance, 185 — Manuscript rights, 186 — Unpublished orchestral score, 187 — Dramatic work by employee, 188 — Copy- right term, 188— Registration, 189 — Assignment, 189 — Parody, 190 — Infringe- ment by single situation, 191 — Protection of title, 191 — Names of characters, 192 — Persons liable for infringement, 193 — Protection against " fly by night" companies, 194 — State legislation, 194 — Remedies under present law, 195 — Musical protection in England, 195 — Acts of 1902-1906, 196 — Playright in other countries, 197 — International provisions, 197 — Foreign protection of arrangements, 197 — International definitions, 198 — National formalities, 199 — Specific reservations and conditions, 200 — Pan American Union, 201. XII. Mechanical Music Provisions 202-221 "Canned music" contest, 202 — Mechanical music provisos, 202 — Compulsory license, 203 — Damages, 203 — Public performance, 204 — The compromise result, 204 — Judicial construction, 205 — Punishment of infringement, 206 — Notice of intention to use, 206 — Constitutional question, 207 — English law, 208 — Berne situation, 1886, 209 — Paris, 1896, 209 — Berlin provision, 1908, 209 — German precedents, 210 — Law of 1910, 211 — Germany and the United States, 212 — French precedents, 212 — Belgian precedents, 213 — Italian precedents, 213 — Other countries, 214 — Argument for inclusion, 214 — In- scribed writings, 215 — Direct sound-writings, 216 — Music transmissal, 216 — Music notation, 217 — The law prior to 1909, 218 — Manuscript and copies, 2x8 — Protection of the inventor, 219 — The counter argument, 220 — Complete protection, 221. XIII. Artistic Copyright 222-250 Threefold value in art works, 222 — American provisions, 223 — Copyright Office classification definitions, 223 — The question of exhibition, 224 — Pro- tection of unpublished work, 225 — Copyright notice, 225 — Deposit, 226 — Summary of requirements, 227 — Material and immaterial properties distinct, 228 — Manufacturing clause, 228 — German post-cards, 229 — Artistic merit, unimportant, 229 — Application forms, 229 — Certificates, 230 — Term in un- published work, 230 — Date not required, 230 — Re-copyright objectionable, 231 — Exhibition right transfer, 231 — Early English decision, 232 — The Werck- CONTENTS xix meister leading case, 233 — Unrestricted exhibition hazardous, 234 — Reserva- tion on sale, 234 — Publication construed, 234 — Danger of forfeiture, 235 — Limited use and license, 236 — Character, not method of use, 237 — Illustra- tion, 237 — Description of artistic work, 238 — Portraits, 238 — Right of em- ployer, 239 — Photographs, 240 ■ — Tableaux mvanls and moving pictures, 241 — Architectural works, 242 — Copy of a copy, 243 — Alterations, 243, 244 — Remedies, 245 — Artistic copyright term, 245 — British practice, 246 — Sculp- ture provisions, 247 — Engraving provisions, 247 — New British code, 247 — Foreign countries, 248 — Berne convention, 1886, 48 — Paris declaration, 1896, 249 — Berlin convention, 1908, 250 — Exhibition not publication, 250 — Pan American Union, 250. PART IV Copyright Protection and Procedure XIV. Infringement of Copyright: Piracy, "Fair Use" and "Unfair Competition" 251-264 Piracy, 251 —Test of piracy, 251 — Infringement in specific meaning, 252 — Questions of fact and intent, 253 — "Fair use," 253 — Principle of infringement, 254 — Infringement by indirect copying, 254 — Exceptions from infringement, 255 — Infringement by abridgment and compilation, 255 — Abridged compila- tions, 256 — Separation of infringing parts, 256 — Law digests, 257 — Proof from common errors, 257 — Infringement in part, 258 — No infringement of piracies or frauds, 258 — Quotation, 259 — Private use, 259 — "Unfair competition," 260 — Deceptive intent, 260 — "Chatterbox" cases, 261 — Encyclopaedia Britannica cases, 261 — Webster Dictionary cases, 261 — "Old Sleuth" cases, 262 — Other title decisions, 262 — Rebound copies, 263 — Kipling case, 263 — Burlesqued title, 264 — Drummond case, 264 — New British code, 264. XV. Remedies and Procedure 265-277 Protection and procedure, 265 — Injunction, 265 — Damages, 265 — One suit sufficing, 266 — Deposit of infringing articles, 266 — Remedies specified, 267 — Impounding, 268 — Supreme court rules, 268 — Court jurisdiction, 268 — Limitation, 269 — Text of procedure provisions, 270 — Proceedings united in one action, 270 — Jurisdiction, 270 — Injunction provisions, 270 — Appeal, 271 — No criminal proceedings, after three years, 271 — Strict compliance requisite, 271 — Damage not penalty, 272 — Other procedure decisions, 273 — Preven- tive action, 274 — Party in suit, 274 — Willful case, 275 — Penal provisions, 275 — False notice of copyright, 276 — Allowance of costs, 276 — New British code, 277. XVI. Importation of Copyrighted Works 278-296 Copyright and importation, 278 — Fundamental right of exclusion, 278 — General prohibitions, 279 — Exceptions permitted, 279 — Text provisions, 280 — Prohi- bition of piratical copies, 280 — Permitted importations, 280 — Library impor- tations, 281 — Seizure, 282 — Return of importations, 282 — Rules against unlawful importation, 282 — Supersedure of previous provisions, 283 — Manu- XX CONTENTS facturing clause affects earlier copyrights, 283 — ^Importation of foreign texts, 284 — Printing within country, 285 — Innocent importation, 286 — Books not claim- ingcopyright,286 — Periodicals, 286 — Composite books, 286— Rebindingabroad, 287 — Importation of non-copyright translation, 288 — Books dutiable, 288 t— Books on free list, 289 — Library free importation, 290 — Copyrights and the free list, 291 — The duty on books, 291 — British prohibition of importation, 292 — Foreign reprints, 293 — Divided market, 293 — New British code, 293 — Canadian practice, 294 — Australian provision, 295 — Foreign practice, 295 — International practice, 296. XVII. Copyright Office: Methods and Practice 297-310 History of Copyright Office, 297 — Routine of registration, 297 — Treatment of deposits, 298 — Destruction of useless material, 299 — Register of Copy- rights, 299 — Catalogues and indexes, 300 — Entry cards, 301 — Text provisions, 302 — Copyright records, 302 — Register and assistant register, 302 — Deposit and report of fees, 302 — Bond, 303 — Annual report, 303 — Seal, 303 — Rules, 303 — Record books, 303 — Certificate, 303 — Receipt for deposits, 304 — Catalogue and index provision, 304 — Distribution and subscriptions, 305 — Records open to inspection, 305 — Preservation of deposits, 305 — Disposal of deposits, 306 — Fees, 307 — Only one registration required, 307 — Present or- ganization, 308 — Efficiency of methods, 308 — Registration, 1909-1910, 309 — Certificates for court use, 309 — Searches, 309 — Patent Office registry for labels, 309 — Foreign practice, 310. PART V International and Foreign Copyright XVIII. International Copyright Conventions and Arrange- ments 311-340 International protection of property, 311 — Early copyright protection, 311 — English protection, 311 — Effect of Berne convention, 313 — International literary congresses, 314 — Fundamental proposition, 314 — Preliminary official conference, 1883, 314 — Propositions of 1883, 315 — First official conference, 1884, 316 — Second official conference, 1885, 317 — Third official conference, 1886, 318 — Berne convention, 1886, 318 — Authors and terms, 318 — "Lite- rary and artistic works" defined, 318 — Performing rights, 319 — Other provi- sions, 319 — Final protocol, 320 — Ratification in 1887, 320 — Paris conference, 1896, 321 — Paris Additional Act, 321 — Paris Interpretative Declaration, 322 — Ratification in 1897, 322 — Berlin conference, 1908, 323 — United States' position, 324 — Welcome of non-unionist countries, 325 — Death of Sir Henry Bergne, 325 — Berlin convention, 1908,326 — "Literary and artistic works" defined, 326 — Authors' rights, 326 — "Country of origin," 327 — Broadened international protection, 327 — Term, 328 — Performing rights, 328 — Other provisions, 329 — National powers reserved, 329 — Organization provisions, 329 — Ratification in 1910, 330 — Official organ, 330 — Montevideo congress, 1889, 331 — Pan American conferences, 331 — Mexico City conference, 1902, 332 — Mexico convention, 1902, 332 — Indispensable condition, 333 — Special CONTENTS xxi provisions, 333 — Ratification, 334 — Rio de Janeiro conference, 1906, 334 — Rio provisions, 335 — Ratification, 336 — Buenos Aires conference and conven- tion, 1910, 336 — Attorney General's opinion on ratification, 337 — Relation with importation provisions, 338 — United States international relations, 339 — "Proclaimed " countries, 339 — Mechanical music reciprocity, 340. XIX. The International Copyright Movement in America . 341-372 Initial endeavor in America, 1837, 341 — The British address, 341 — Henry Clay report, 1837, 344 — Prophecy of world union, 344 — Clay bills, 1837-42, 346 — Palmerston invitation, 1838, 346 — Efforts, 1840-48, 346 — Everett treaty, 1853, 347 — Morris bills, 1858-60, 348 — International Copyright Association, 1868, 348 — Baldwin bill and report, 1868, 348 — Clarendon treaty, 1870, 349 — Cox bill and resolution, 1871, 349 — The Appleton proposal, 1872, 350 — Phila- delphia protest, 1872, 351 — The Bristed proposal, 1872, 351 — Kelley resolu- tion, 1872, 352 — Congressional hearings, 352 — Beck-Sherman bill, 1872, 352 — Morrill report, 1873, 353 — Banning Bill, 1874, 353 — The Harper proposal and draft, 1878, 353 — Granville negotiations, 1880, 355 — Robinson and Collins bills, 1882-83, 356 — American Copyright League, 356 — Dorsheimer bill, 1884, 356 — American publishers' sentiment, 357 — Hawley bill, 1885, 358 — Chace bill, 1886, 358 — Congressional hearings, 1886, 359 — Mr. Lowell's epigram, 359 — President Cleveland's second message, 1886, 360 — Campaign of 1887, 360 — Senate passage of Chace bill, 1888, 361, — Bryce bill, 1888, 361 — President Har- rison's message, 1889, 361 — Simonds bill and report, 1890,362 — Senate debate, 1891, 363 — Act of March 4, 1891, 363 — Review of the publishing situation, 364 — Lack of unified policy, 365 — Compromise of 1891, 365 — Need of general revision, 366 — Ad interim copyright act, 1905, 366 — Copyright conferences, 1905-06, 367 — President Roosevelt's message, 1905, 368 — Congressional hear- ings, 1906-08, 369 — Kittredge-Currier reports, 1907, 369 — Smoot-Currier Kittredge-Barchfeld bills, 1907-08, 370 — Washburn, Sulzer, McCall, Currier bills, 1908, 370 — Fourth Congressional hearing, 1909, 371 — Act of March 4, 1909, 371 — Hopes of future progress, 372. XX. Copyright throughout the British Empire 373-397 English and Anierican systems, 373 — First publication and residence, 373 — Variadons in copyright terms, 374 — New British code, 374 — Scope and extent, 375 — Publication, 376 — Definition of copyright, 376 — Infringement, 376 — Term, 377 — Ownership, 377 — Deposit copies, 378 — Importation, 378 — Remedies, 378 — General relations, 379 — Acts repealed, 379 — Changes from original bill, 379 — Isle of Man, 380 — Channel Islands, 381 — International rela- tions, 381 — Colonial relations, 381 — Local legislation, 382 — Canadian copy- right history, 383 — Dominion of Canada: early acts, 383 — Acts of 1875, 384 — License acts disallowed, 385 — Fisher Act, 1900, 385 — Minor acts, 386 — Short form of notice, 386 — Proposed Canadian copyright code, 191 1, 386 — Imperial and Canadian copyright, 388 — Requisites for domestic copyright, 388 — Imperial and local protection, 388 — Additional local protection, 389 — Appli- cation for copyright, 389 — Newfoundland, 390 — British West Indies, etc., 391 — Australian code of 1905, 391 — General provisions, 392 — Dramatic and musical works, 393 — Performing right, 393 — Registration and license, 394 — xxii CONTENTS New Zealand, 394 — Australasia otherwise, 395 — British India, 395 — South Africa, 396 — West coast colonies, 397 — Mediterranean islands, 397. XXI. Copyright in Other Countries 398-429 France, 398 — Belgium, 400 — Luxemburg, 400 — Holland, 401 — Germany, 402 — Austria-Hungary, 405 — Switzerland, 406 — Scandinavian countries, 407 — Russia, 409 — Finland, 409 — Spain, 410 — Portugal, 411 — Italy, 412 — San Marino, 413 — Monaco, 413 — Greece, 414 — Montenegro, 414 — Balkan states, 414 — Turkey, 415 — Japan, 415 — Korea, 416 — China, 417 — Siam, 417 — Asia otherwise, 418 — Tunis, etc., 418 — Egypt, 418 — Liberia, 419 — Africa otherwise, 419 — Latin America, 419 — Mexico, 420 — Central American states, 421 — Interstate and international relations, 422 — Panama, 423 — Cuba, 423 — Haiti, 424 — Dominican Republic, 424 — West Indian colonies, 425 — Brazil, 425 — Argentina, 425 — Paraguay and Uruguay, 426 — Chile, 427 — Peru, 427 — Bolivia, 427 — Ecuador, 428 — Colombia, 429 — Venezuela, 429. PART VI Business Relations and Literature XXII. Business Relations OF Copyright: Author AND Publisher 430-452 Copyrights in business relations, 430 — German publishing law of 1901, 430 — The publisher as merchant, 434 — "Outright" transfer, 434 — "Joint adven- ture," 435 — Risk and profit, 435 — Long price and "net" price, 436 — Equities, 436 — The literary agent, 436 — Usual American contract, 437 — Pub- lishers' obligations, 437 — Reversion of contract, 438 — Scope of contract, 438 — Other works of author, 439 — Standard contract, 439 — Serial rights, 439 — Republication of periodical articles, 440 — Foreign markets, 440 — Contract to do work, 440 — Contract not to write, 441 — Implied obligations, 442 — Con- tract personal and mutual, 442 — Author's transfer to other publishers, 445 — Proprietary name, 445 — Copies remaining unsold, 446 — Renewal term, 447 — License not assignment, 447 — Author's and publisher's profits, 447 — The pub- lisher's share, 448 — "Author's editions," 449 — Printer's lien, 449 — Compul- sory license system, 449 — License payments, 450 — Saving through single pub- lisher, 451 — Copyrights in bankruptcy, 451 — Copyrights in taxation, 452. XXIII. The Literature of Copyright 453-462 Bibliographical materials, 453 — Early history, 453 — Early American contri- butions, 454 — Later American pamphleteers, 454 — American treatises, 455 — Copyright Office publications, 455 — Labor report, 456 — English contributions about 1840, 456 — Later English contributions, 457 — English legal treatises, 457 — Birrell's lectures, 458 — MacGillivray's works, 458 — English special treatises, 459 — Parliamentary and Commission reports, 459 — Cyclopaedias and digests, 460 — French works, 460 — German works, 460 — Italian works, 461 — Spanish compendium, 461 — International compilations, 462. CONTENTS xxiii APPENDIX I. United States of America: Copyright Provisions . . . 465-516 1. United States Copyright Code of 1909, 465. 2. President's Proclamations, 489. 3. United States Supreme Court Rules, 491. 4. United States Copyright Office Regulations, 493. Application for copyright, with affidavit form, 511. 5. U. S. Treasury and Post Office Regulations, 513. II. British Empire: Copyright Provisions 517-602 6. British Copyright Act, 1911, 517. 6a. Fine Arts Copyright Act, 1862, 548. 66. Musical (Summary Proceedings) Copyright Act, 1902, 550. 6c. Musical Copyright Act, 1906, 552. 7. Canadian Copyright Measure^ 1911, 555. 8. Australian Copyright Act, 1905, 580. III. International Copyright Union: Conventions .... 603-632 9. Berne-Paris Conventions, 1886, 1896, 603. 10. Berlin Convention, 1908, 603. IV. Pan American Union: Conventions 633-652 11. Montevideo Convention, 1889, 633. 12. Mexico City Convention, 1902, 637. 13. Rio de Janeiro Convention, 1906, 642. 14. Buenos Aires Convention, 1910, 649. Chronological Table of Laws and Cases, English and American 653-675 Index 677-709 Conspectus of Copyright by Countries . . . precedes Contents COPYRIGHT ITS HISTORY AND ITS LAW I THE NATURE AND ORIGIN OF COPYRIGHT Copyright (from the Latin copia, plenty) means, in Copyright, general, the right to copy, to make plenty. In its ""eaning specific application it means the right to multiply copies of those products of the human brain known as literature and art. There is another legal sense of the word "copy- right" much emphasized by several English justices. Through the low Latin use of the word copia, our word "copy" has a secondary and reversed meaning, as the pattern to be copied or made plenty, in which sense the schoolboy copies from the "copy" set in his copy-book, and the modern printer calls for the au- thor's "copy." Copyright, accordingly, may also mean the right its two in copy made (whether the original work or a dupli- senses cation of it), as well as the right to make copies, which by no means goes with the work or any dupli- cate of it. Said Lord St. Leonards in the case of Jefferys v. Boosey in 1854: "When we are talking of the right of an author we must distinguish between the mere right to his manuscript, and to any copy which he may choose to make of it, as his property, just like any other personal chattel, and the right to multiply copies to the exclusion of every other per- son. Nothing can be more distinct than these two 2 COPYRIGHT things. The common law does give a man who has composed a work a right to that composition, just as he has a right to any other part of his personal pro- perty; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of forever copying his own composi- tion after he has published it to the world, is a totally different thing." Baron Parke, in the same case, pointed out expressly these two different legal senses of the word copyright, the right in copy, a right of possession, always fully protected by the common law, and the right to copy, a right of multiplication, which alone has been the subject of special statutory protection. Blackstone Blackstone in his Commentaries of 1 767, in which the word copyright seems to have been first used, lays down the fundamental principles of copyright as follows: "When a man, by the exertion of his rational powers, has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it appears to be an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition ; and what- ever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may, perhaps, be tacitly given to all mankind, when an author suffers his work to be pub- lished by another hand, without any claim or reserve NATURE AND ORIGIN 3 of right, and without stamping on it any marks of ownership ; it being then a present to the pubUc, like building a church or bridge, or laying out a new high- way." There is nothing which may more rightfully be Property by called property than the creation of the individual creation brain. For property (from the Latin proprius, own) means a man's very own, and there is nothing more his own than the thought, created, made out of no material thing (unless the nerve-food which the brain consumes in the act of thinking be so counted) , which uses material things only for its record or manifesta- tion. The best proof of oww-ership is that if this individual man or woman had not thought this indi- vidual thought, realized in writing or in music or in marble, it would not exist. Or if the individual think- ing it had put it aside without such record, it would not, in any practical sense, exist. We cannot know what "might have beens" of untold value have been lost to the world where thinkers, such as inventors, have had no inducement or opportunity thus to materialize their thoughts. It is sometimes said, as a bar to this idea of pro- Are thoughts perty, that no thought is new — that every thinker «eated? is dependent upon the gifts of nature and the thoughts of other thinkers before him, as every tiller of the soil is dependent upon the land as given by nature and improved by the men who have toiled and tilled before him, — a view of which Henry C. Carey has been the chief exponent in this country. But there is no real analogy — aside from the question whether the denial of individual property in land would not be setting back the hands of progress. If Farmer Jones does not raise potatoes from a piece of land, Farmer Smith can; but Shakespeare cannot write "Paradise lost" nor Milton "Much ado," though before both COPYRIGHT Property in unpublished works Dante dreamed and Boccaccio told his tales. It was because of Milton and Shakespeare writing, not be- cause of Dante and Boccaccio who had written, that these immortal works are treasures of the English tongue. It was the very self of each, in propria per- sona, that gave these form and worth, though they used words that had come down from generations as the common heritage of English-speaking men. Pro- perty in a stream of water, as has been pointed out, is not in the atoms of the water but in the flow of the stream. Property right in unpublished works has never been effectively questioned — a fact which in itself confirms the view that intellectual property is a natural inherent right. The author has "supreme control " over an unpublished work, and his manu- script cannot be utilized by creditors as assets with- out his consent. " If he lends a copy to another," says Baron Parke, "his right is not gone; if he sends it to another under an implied undertaking that he is not to part with it or publish it, he has a right to enforce that undertaking." The receiver of a letter, to whom the paper containing the writing has undoubtedly been given, has no right to publish or otherwise use the letter without the writer's consent. The theory that by permitting copies to be made, an author dedi- cates his writing to the public, as an owner of land dedicates a road to the public by permitting public use of it for twenty-one years, overlooks the fact that in so doing the author only conveys to each holder of his book the right to individual use, and not the right to multiply copies, as though the landowner should not give but sell permission to individuals to pass over his road, without any permission to them to sell tickets for the same privilege to other people. The owner of a right does not forfeit a right by selling a privilege. NATURE AND ORIGIN 5 It is at the moment of publication that the un- Theques- disputed possessory right passes over into the much tioaof disputed right to multiply copies, and that the vexed P'*^"<=**'<'" question of the true theory of copyright property arises. The broad view of literary property holds that the one kind of copyright is involved in the other. The right to have is the right to use. An author cannot use — that is, get beneficial results from — his work, without offering copies for sale. He would be otherwise like the owner of a loaf of bread who was told that the bread was his until he wanted to eat it. That sale would seem to contain "an im- plied undertaking" that the buyer has liberty to use his copy, but not to multiply it. Peculiarly in this kind of property the right of ownership consists in the right to prevent use of one's property by others without the owner's consent. The right of exclusion seems to be indeed a part of ownership. In the case of land the owner is entitled to prevent trespass, to the extent of a shot-gun, and in the same way the law recognizes the right to use violence, even to the extreme, in preventing others from possession of one's own property of any kind. The owner of a literary property has, however, no physical means of defence or redress ; the very act of publication by which he gets a market for his productions opens him to the danger of wider multiplication and pub- lication without his consent. There is, therefore, no kind of property which is so dependent on the help of the law for the protection of the real owner. The inherent right of authors is a right at what inherent is called common law — that is, natural or custom- "giit ary law. The common law, says Kent, "includes those principles, usages, and rules of action applica- ble to the government and security of person and property which do not rest for their authority upon COPYRIGHT Statutory penalties Statute of Anne any express and positive declaration of the will of the legislature." "The common law or lex non scripta," says Blackstone, "depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary," So far as concerns the undis- puted rights before publication, the copyright laws are auxiliary merely to common law. Rights exist before remedies; remedies are merely invented to enforce rights. "The seeking for the law of the right of property in the law of procedure relating to the remedies," says Copinger in his standard English work on "The law of copyright," "is a mistake similar to supposing that the mark on the ear of an animal is the cause, instead of the consequence, of property therein." After the invention of printing it became evident that new methods of procedure must be devised to enforce common law rights. Copyright became, therefore, the subject of statute law, by the passage of laws imposing penalties for a theft which, without such laws, could not be punished. These laws, covering naturally only the country of the author, and specifying a time during which the penalties could be enforced, and providing means of registration by which authors could register their property rights, as the title to a house is regis- tered when it is sold, had an unexpected result. The statute of Anne, which is the foundation of present English copyright law, intended to protect authors' rights by providing penalties against their violation, had the effect of limiting those rights. It was doubt- less the intention of those who framed the statute of Anne to establish, for the benefit of authors, specific means of redress. Overlooking apparently the fact that law and equity, as their principles were then NATURE AND ORIGIN 7 established, enabled authors to use the same means of redress, so far as they held good, which persons suffering wrongs as to other property had, the law was so drawn that in 1774 the English House of Lords (against, however, the weight of one half of Supersedure English judicial opinion) decided that, instead of giv- |** co^on ing additional sanction to a formerly existing right, *^ "^ the statute of Anne had substituted a new and lesser right to the exclusion of what the majority of Eng- lish judges held to have been an old and greater right. Literary and like property to this extent lost the character of copy-right, and became the subject of copy-privilege, depending on legal enactment for the security of the private owner. American courts, wont to follow English precedent, have rather taken for granted this view of the law of literary property, and our Constitution, in authorizing Congress to secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries," was evidently drawn from the same point of view, though it does not in itself deny or withdraw the natural rights of the author at common law. II In classic times Roman law Monastic copyists THE EARLY HISTORY OF COPYRIGHT Our traditions of the blind Homer, singing his Iliad in the multitudinous places of his protean nativity, do not vouchsafe us any information as to the status of authors in his day. There seems indeed to be no indication of author's rights or literary pro- perty in Greek or earlier literatures. But there is mention in Roman literature of the sale of play- right by the dramatic authors, as Terence; and Rome had booksellers who sold copies of poems written out by slaves, and who seem to have been protected by some kind of "courtesy of the trade," since Martial names certain booksellers who had specific poems of his for sale. Horace complains that the Sosius brothers, his publishers, got gold while he got only fame — but this may have been a clcissic "author's grumble." Cicero in his letters indicates that there was some notion of literary property, and it is prob- able that some kind of payment was made to authors. The Roman jurist Gaius, probably of the second century, held that where an artist had painted upon a tabula, his was the superior right. And this opinion was adopted by Tribonian, chief editor of the code of Justinian, in the sixth century, and was applied in a modern question in respect to John Leech's drawings upon wood. In the early Christian centuries, the monasteries became the seats of learning, and the scriptorium or writing room, in connection with the librarium or armarium, — the armory in which the weapons of the EARLY HISTORY 9 faith were kept, — was the work-shop of the monkish copyists, sometimes working as a publishing staff under the direction of the librarius or armarius as chief scribe. The first record of a copyright case is that of Finnian v. Columba in 567, chronicled by St. Columba Adamnan fifty years later and cited by Montalem- and Finnian bert in "The monks of the West." St. Columba, in his pre-saintly days, surreptitiously made a copy of a psalter in possession of his teacher Finnian, and the copy was reclaimed, so the tradition relates, under the decision of King Dermott, in the Halls of Tara: "To every cow her calf." The authenticity of the tradition is questioned by other writers, but the phrase gives the pith of the common law doctrine of literary property and indicates that in those early centuries there was a sense of copyright. Monks from other monasteries came to a noted scriptorium where a specially authentic or valuable manuscript could be copied, and the privilege of copying some- times became the basis of an exchange of copies or of a commercial charge. Finally different texts of the same work were compared to obtain a certain or standard text, and the multiplication of such copies became the basis of a publishing and bookselling trade, in secular as well as sacerdotal hands, the de- velopment of which is traced in detail by George Haven Putnam in "Books and their makers in the Middle Ages." This development is illustrated in the statutes of University 1223 of the University of Paris, providing that the protection "booksellers of the University" should produce duplicate copies of the texts authorized for the use of the University, and there is indication that payment was made by the University to scholars for the anno- tation and proof-reading of such texts. In fact, there existed in France in those days a kind of guild of 10 COPYRIGHT Ubraires jures or legalized booksellers, under regula- tion of the University, as a body of publishers and writers having jurisdiction over the copying and censorship of manuscripts. "Letters of patent" of Charles V, 1368, specified fourteen libra-ires and eleven ecrivains as registered in Paris, and four chief Ubraires had jurisdiction over the calling of the Ubrarius and the stationarius. The certificate of the correctness of a copy, and perhaps of the right to copy or sell it, may be considered the primitive form of copyright certificate. Invention of The invention of printing, prior to 1450, made pro- printing tection of literary property a question of rapidly in- creasing importance. The new art raised, of course, many new questions wherever the guardians of the law were set to their chronic task of applying old ideas of right to new conditions. The earliest copy- right certificate, if it may be so called, in a printed book was that in the re-issue of the tractate of Peter Nigrus printed in 1475, at Esslingen, in which the Bishop of Ratisbon certified the correctness of the copy and his approval. /At first "privileges" were granted chiefly to printers, for the reproduction of classic or patristic works, but possibly in some cases as the representatives of living writers ; and there are early instances of direct grants to authors, the earliest known being in i486 in Venice to Sabellico. la Germany In Germany, the cradle of the art of printing, whence come the earliest incunabula or cradle-books, printing privileges were developed some decades later than in Italy. Koberger, the early Nuremberg printer, whose imprint dates back to 1 473 , relied rather on the " courtesy of the trade," and indeed made an agreement in 1495 with Kessler of Basel to respect each other's rights. Yet a suit brought in 1480 by Schoffer, who with Fust had established the first EARLY HISTORY ii publishing and bookselling business, brought in con- Germany nection with Fust's heirs against Inkus of Frankfort for the infringement of property rights in certain books, and the issue of a preliminary injunction by a court at Basel, indicated some definite legal status. The first recorded privilege in Germany was issued by the imperial Aulic Council in 150 1, to the Rhenish Celtic Sodalitas for the printing of dramas of the nun-poet, Hroswitha, who had been dead for 600 years, as prepared by Celtes of Nuremberg. The imperial privilege covered only the imperial domain, and Celtes in the same year obtained a similar privi- lege from the magistracy of Frankfort, then the seat of the book-fair, organized there about 1500, after- wards superseded by that at Leipzig. Later, imperial privileges were issued by the Imperial Chancellor in the nEmie of the Emperor, as one in 15 10 to the printer Johann Schott of the "Lecture aurea." In 1512 Maximilian I granted to the historiographer Johann Stab in Lintz a privilege covering "all works" which he "might cause to be printed," under which he issued licenses on particular books for ten years or less. This grant, however, some authorities consider not a privilege or copyright, but an author- ization to license, possibly similar to that which had been granted in 1455 by Frederick III and confirmed later by Maximilian I to Dr. Jacob Ossler at Stras- burg, perhaps the earliest centre of printing and bookselling, as imperial supervisor of literature and superintendent of printing. In 1512 also, copies or imitations or engravings by Albert Diirer, with forged signature, were ordered confiscated by the magistrates of Nuremberg, though perhaps on grounds of fraud rather than of copyright. But in 1528 Diirer's widow obtained from the Nuremberg authorities exclusive privilege for his works, and in 12 COPYRIGHT Germany that year the magistrates went so far in protecting Diirer's " Proportion " as to restrain another work of the same title and subject, presumably though mis- takenly inferred to be an adaptation or imitation, until after the completion and sale of the original work. In 1532 reengravings of some of Diirer's works were restrained, and when a Latin edition of his "Perspective," printed in Paris, found its way to Nuremberg, the magistrates called the booksellers together, warned them against keeping or selling the unauthorized edition, and sent letters to the magis- tracy of Strasburg, Frankfort, Leipzig and Antwerp, requesting similar action. Luther in his reforming zeal was the first protestant against authors' wrongs, and in a letter of 1528 complained that "there are many now busying themselves with the spoiling of books through misprinting them," and pleaded for legislation to protect literary producers. In 1 531 the city council of Basel enjoined all booksellers from reprinting the books of each other for three years from publication under penalty of one hundred gulden, which illustrates the nature of local legislation, priv- ileging printers as well as other guilds within a city. The protection was usually for short terms and some- times covered the subject as well as the book, as indi- cated in the Diirer case. The coordinate jurisdiction of imperial and local authority continued into the seventeenth century, and besides a special protection of official publications, including church texts and school books, there developed a differentiation between privileged books and protected authors. The imperial city of Frank- fort in 1660 passed an ordinance for the protection of "biicher" and "autores," and an imperial patent of 1685 made the curious distinction between "priv- ileged" and "unprivileged" works, which Putter, EARLY HISTORY 13 reputed the German apostle of the modern theory of Gennany property in literary productions, writing in 1764, explains as meaning respectively "non-individual" and "individual" {eigenthumlich) works, the former those issued under printers' privileges, the latter the works of contemporary authors, copyrightable in our modern sense. At the close of the seventeenth century, the book-fair at Leipzig began to assume dominating importance, and the privileges from the Commission of the Elector of Saxony became more authoritative, perhaps, than the imperial privileges issued from Frankfort. Venice, among whose chief glories were to be the In Italy: master printers Aldus, was the first and foremost of Venice the Italian states to encourage the new art. The first privilege granted by her Senate, in 1469, indeed ante- dated the first in Germany by thirty-two years, the first in France by thirty-four years, and the first in England by forty-nine years. This was to John of Speyer, a German printer, for a monopoly for print- ing in Venice for five years, with prohibition of im- portation of works printed elsewhere, which he did not live to enjoy. The first known author's copyright was granted September i, i486, to Antonio Sabellico, historian to the Republic, of the sole right to publish or authorize the publication of his " Decade of Vene- tian affairs," not limited in time, with a penalty of five hundred ducats for infringement. In 1491 the Senate gave to the publicist Peter of Ravenna and the publisher of his choice the sole right, without mention of term, to print and sell his "Phoenix," usually cited as the first instance of copyright. In 1493 one Barbaro was granted a privilege for ten years in the work of his deceased brother, and In the same year an editor's copyright was granted to Joannes Nigro for his edition of "Haliabas," his ap- 14 COPYRIGHT Italy plication being accompanied by a certificate from learned doctors of Padua of its value for the com- munity, and a publisher's copyright to Benaliis on Giustiniani's "Origin of the city of Venice," both apparently without term. In 1494 a privilege to Codeca contained the condition of fair price, and an- other privilege required publication within a year or at the rate of a folio a day. In 1496 Aldus himself was given the privilege for twenty years of printing any Greek texts, and in 1501, another for ten years of printing in cursive or italic characters, an inven- tion of his own modeled on the handwriting of Boc- caccio, a quasi patent right; and rights for other languages were granted to other printers. From 1505 renewals were granted for good cause, as in 1508 to Crasso for his edition of the works of Poli- filo, because the wars had prevented due return. The privilege dated sometimes from application, some- times from publication, and varied in term from one year up, averaging perhaps ten years at the beginning and twenty years toward the close of the sixteenth century. Many of the privileges were conditioned on printing within Venice. Copyright to authors be- came frequent, as in 151 5 on his "Orlando" for his lifetime, to Ariosto, on whose poems an extra term for ten years was granted, in 1535, to his heirs. In 1 52 1 Castellazzo obtained a copyright for his en- gravings illustrating the Pentateuch and for others which he had in plan ; and many musical works were also copyrighted. It will be seen that before or early in the six- teenth century most of the copyright conditions of later legislation, even in the American code of 1909, had been prophesied in Venice. But the privileges had become so complicated and perplexing that in 1 51 7 the Venetian Senate abolished all printing privi- EARLY HISTORY 15 leges previously granted and decreed that privileges Italy should thereafter be granted only by two-thirds vote and for a new work {opus novum) "never pub- lished before," or works hitherto unprivileged. This attempt at reform proved inadequate and indefinite, and in 1533 the first real copyright code was decreed, under which printing was required within Venice, and publication within a year — later modified for larger works to a folio a day. No publisher could apply twice for the same copyright, and a maximum price was fixed from an advance copy by the Bu- reau of Arts and Industries. Under the restriction of competition, Venetian printers, once the best in the world, fell into "the ruinous and disgraceful practice," according to a decree of 1537, "for the sake of gain" of using "vile paper that would not hold the ink" or permit marginal notes; and the use of good paper that could be written upon without blotting was required, except for works priced under ID soldi, on penalty of forfeiture of copyright and a fine of 100 ducats. Under the earlier privileges publishers had printed books without consent of the authors or against their will, but in 1545 it was decreed that no copyright should issue unless docu- mentary evidence of the consent of the author or his representatives had been submitted to the RifTorma- tori, the commission from the University of Padua, appointed the year before as censors upon non-theo- logical works, not covered by the ecclesiastical censors. A decree in 1548 established a guild of printers and publishers, antedating the charter granted by Queen Mary to the Stationers' Company in London, though later than the organization of the book-fair of Frankfort and of the libraires juris in France; and its regulations, aiding the censorship, incidentally defined literary property and protected copyrights. i6 COPYRIGHT Italy About 1566 there was a provision that works should be registered before publication without charge, and a complete registry of published works was kept in Venice. In 1569 as many as 117 copyright entries were made in Venice, and so few, after the plague years, as seven in 1599. Only two applications are recorded as refused by the Senate. The one recorded instance of punishment for piracy was that on the work of Pappa Alesio of Corfu, wherein the infringer was fined 200 ducats, besides ten ducats for each unauthorized copy printed, and was forbidden to print for ten years. About 1600 the exodus of printers from Venice was checked by legislation, and in 1603 an elaborate decree provided copyright for twenty years on books first published in Venice, for ten years on books first published in Italy but registered in Venice, or on books not printed in Venice within the previous twenty years, and for five years on books not printed within ten years previous, and also a fine of twenty- five ducats for the false use of "Venetia" in the im- print. Later, as is evidenced by complaints in 1671, deposit copies were required for the libraries of St. Mark and of Padua. By the close of the seventeenth century the provisions for copyright in Venice had become so complicated, according to Putnam, follow- ing Brown's historical study of " The Venetian print- ing press," as to require the following processes, most of them involving a fee: "testamur from the ducal secretary; certificate from the Rifformatori of the University of Padua ; imprimatur from the Chiefs of the Ten ; revision by the Superintendent of the Press ; revision by the public proof-reader; collation of the original text with the text as printed, by the secretary to the Riflformatori ; certificate from the librarian of St. Mark that a copy had been deposited in the EARLY HISTORY, 17 library ; examination by experts appointed by the Pro- veditori to establish the market price of the book." Florence was second only to Venice in the produc- Florence tion of books and the protection of authors, and the records of Florentine printing show that in the six- teenth century international privileges were sought and obtained. Thus the printer of a Florentine edi- tion of the Pandects, in 1553, obtained privileges also in Spain, France and the two Sicilies, possibly through a Papal grant. By 1 515. under Leo X, patron of art and letters. Control by the Holy See had asserted its jurisdiction over copy- ^^ Church rights and privileges, not only in its own territory, but throughout Italy and Germany, and elsewhere, under pain of spiritual punishments. Fra Felice of Prato, a converted Jew, had obtained from the Pope a privi- lege for certain Hebrew works valid throughout all Europe, the denial or infringement of which was punishable by excommunication; but he took the precaution to obtain a privilege also from the Vene- tian authorities. There is other evidence of a com- promise policy involving approval from the Church before a secular privilege was granted, especially of theological works. Throughout Catholic countries the index expurgatorius banned for the most part the printing of forbidden books; and this made Holland later the chief centre of printing, since the placing of a work in the index invited prompt reprint by Dutch publishers. It was perhaps a survival of a require- ment for deposit of such books that Holland so long remained the only nation in Europe conditioning copyright on deposit of a copy printed within the country. In France, after the invention of printing, the func- In France tions of the libraires jures, under the authority given by the King through the University of Paris, naturally i8 COPYRIGHT France came to include books, and this relation was con- tinued until the Revolution of 1789. Copyrights throughout this period seem to have been in perpetu- ity. At the beginning of the fifteenth century, in the times of Louis XII," letters of the King ' ' forbade book- sellers, printers and other persons to "introduce for- eign impressions" of the books to which such letters were appended. They were usually issued to printers. In 1537, under Francis I, a work had first to secure "the King's approval given through the royal libra- rian," a copy must be deposited in the library of the royal chateau of Blois, and the selling of foreign works was permitted only after approval as worthy of a place in the royal library, — but for these last the library was to pay the usual price. In 1556 a general ordinance of Henry II defined literary property, and publication of condemned books was declared treason. In 1566 the "Ordinance de Moulins" of Charles IX made further definition ; and letters patent of Henry III, in 1576, referred back to these earlier ordinances. Infringement of such privileges was punished with especial severity in France, for, as quoted by Lowndes, such conduct was thought "worse than to enter a neighbor's house and steal his goods: for negligence might be imputed to him for permitting the thief to enter: but in the case of piracy of copy- right, it was stealing a thing confided to the public honor." Louis XIV in 1682 visited it with corporal punishment, and for a second offence decreed in 1686 also that the offender should be forever disabled from exercising his trade of bookseller or printer. Copyrights continued in perpetuity until all royal privileges were abolished in 1789 by the National Assembly, after which in July, 1793, a general copy- right law was passed, granting copyright to an author for his life and to his heirs for ten years thereafter. EARLY HISTORY 19 In England, a Royal Printer was appointed in 1504, In England and to his successor, Richard Pynson, in 1518, the first printing "privilege" was issued, in the form of a prohibition for two years of the printing by any other person of a certain speech to which this first English copyright notice was appended. Bishop Fell, in his memoirs on the state of printing in the University of Oxford, states that this University had been granted certain exclusive privileges of transcribing and mul- tiplying books by means of writing; and Lowndes in his early "Historical sketch of the law of copy- right," published in 1840 and 1842, cites many early privileges, most commonly for seven years, granted after the invention of printing. An early enactment of Richard III, in 1483, had encouraged the circulation of books by exempting from certain restraints on aliens "any artificer, or merchant stranger, of what nation or country he be, for bringing into this realm, or selling by retail or otherwise, any books written or printed, or for inhab- iting within this said realm for the same intent, or any scrivener, alluminor, reader, or printer of such books." But fifty years later, under Henry VIII, this exemption was repealed by an act, "for printers and binders of books," which provided that no per- sons "resident or inhabitant within this realm shall buy to sell again, any printed books brought from any parts out of the King's obeysance, ready bound in boards, leather, or parchment," or buy "of any stranger born out of the King's obedience, other than of denizens, any manner of printed books brought from any parties beyond the sea, except only by en- gross, and not by retail" — the buyer to be punished by a fine, of which a moiety was to go to the in- former. The act also contained provisions to "reform and redress," through the Chancery judges with 20 COPYRIGHT "twelve honest and discreet persons," "too high and unreasonable prices." Book The quaint preamble of this act of 1533 sets forth restriction as its "whereas," in reference to the act of Richard III, that "there hath come to this realm si then the making of the same, a marvelous number of printed books, and daily doth ; and the cause of the making of the same provision seemeth to be, for that there were but few books, and few printers within this realm at that time, which could well exercise and occupy the said science and craft of printing; never- theless, sithen the making of the said provision, many of this realm, being the King's natural subjects, have given them so diligently to learn and exercise the said craft of printing, that at this day there be within this realm a great number cunning and expert in the said science or craft of printing, as able to exercise the said craft in all points, as any stranger in any other realm or country; and furthermore, where there be a great number of the King's subjects within this realm, which live by the craft and mys- tery of binding of books, and that there be a great multitude well expert in the same, yet all this not- withstanding, there are divers persons that bring from beyond the sea great plenty of printed books, not only in the Latin tongue, but also in our maternal English tongue, some bound in boards, some in leather, and some in parchment, and them sell by retail, whereby many of the King's subjects, being binders of books, and having no other faculty where- with to get their living, be destitute of work and like to be undone, except some reformation herein be had." This is interesting in connection with the American manufacturing clause. Henry VIII granted many printing privileges, and in 1530 the first English copyright to an author was EARLY HISTORY 21 issued to John Palsgrave, who, having prepared a Early French grammar at his own expense, received a priv- EngUsh ilege for seven years. In 1533 appeared the first P"*®'=**°° complaint of piracy, that of Wynken de Worde, who obtained the King's privilege for his second edition of Witinton's Grammar, because Peter Trevers had reprinted it from the edition of 1523. Up to the mid- dle of the sixteenth century copyrights were in form printers' licenses, and even in the case cited Pals- grave seems to have been recognized rather because he published his own book than because he wrote it. The Stationers' Company, created by Henry VIII The and chartered under Queen Mary in 1556, though the Stationers' development of an earlier guild dating from 1403, ""'"^y was in part a device to prevent seditious printing, bx prohibiting any printing in England except by those registered in its membership. In 1558, under a second charter, its by-laws provided that every one who printed a book should register it and pay a fee, and those who failed to do this, or who pniTfed another member's book, were to be fined. In 1562 licenses were declared void "if any other has a right," and in 1573 sales of "copy" are entered. The practice had grown up of granting patents or monopolies to persons for a wh~6Te' class of books ;^' the Stationers' Company itself held that for alma- nacs up to a very late period, and the Crown has retained that on the Bible and the Book of Com- mon Prayer to the present day. These monopolies were defied, and the Star Chamber decree of 1566, disabling offending printers from exercising their trade and prescribing imprisonment, did not avail. In 1640 the Star Chamber and all the regulations of the press were abolished by the Long Parliament, but the abuse of unlicensed printing led to a new licensing act in 1643, which prohibited printing or importing 22 COPYRIGHT without consent of the owner, on pain of forfeiture of copies to the owner, and which renewed the order that all books should be entered in the register of the Sta- tioners' Company. The early registers still exist in Stationers' Hall, near Paternoster Row, London, in quaint and almost undecipherable chirography, and some of them have been reissued in facsimile. It was against the licensing act of this date that Milton, in 1644, printed his "Areopagitica," but he particu- larly excepts from his criticism of the act the part providing for "the just retaining of each man his several copy, which God forbid should be gainsaid." Statutory In 1649 Parliament provided a penalty of 65. Sd. provisions and forfeiture for the reprinting of registered books, and prohibited presses except at London, Finsbury, York, and the universities, and in 1662 it added the requirement of deposit of a copy at the King's library and at each of the universities. To prevent fraudu- lent changes in a book after licensing, it was further required that a copy be deposited with the licenser at the time of application — apparently the origin of our record-deposit. With the expiration of these acts in 1679, legislative penalties lapsed and piracy became common. Charles II in 1684 renewed the charter of the Stationers' Company, approved its register, and confirmed to proprietors of books "the sole right, power, and privilege and authority of printing, as has been usual heretofore." The licensing act of 1649-62 was revived in 1685, and renewed up to 1694, al- though the booksellers now petitioned against it, and eleven peers protested against subjecting learning to a mercenary and perhaps ignorant licenser, and destroying the property of authors in their copies. The law lapsed because of the indignation of the Commons against the arbitrary power of the license, but the result was the abolition of statutory penal- EARLY HISTORY 23 ties, which left the punishment of piracy a matter of England damages at common law, requiring a separate ac- tion for each copy sold, usually against irresponsible people. Piracy again flourished. The right at com- mon law seems, however, to have been unquestioned, and the Court of Common Pleas held that a plain- tiff who had purchased from the executors of an author was owner of the property at common law. Owners of literary property petitioned Parliament, 1703 to 1709, for security and redress, declaring that the property of English authors had always been held as sacred among the traders, that conveyance gave just and legal title, that the property was the same with houses and other estates, and that existing "copies" had cost at least £50,000, and had been used in marriage settlements and were the subsist- ence of many widows and orphans. This led to the famous statute of Anne, introduced in 1709, and passed March, 1 7 10, " for the encouragement of learn- ing," said to have been drawn in its original form by Swift, which remains the practical foundation of copyright in England and America to-day. in The statute of Anne as foundation Its relations to common law THE DEVELOPMENT OF STATUTORY COPYRIGHT IN ENGLAND The statute of Anne, the foundation of the present copyright system of England and America, which took effect April lo, 1710, gave the author of works then existing, or his assigns, the sole right of printing for twenty-one years from that date and no longer; of works not then printed, for fourteen years and no longer, except in case he were alive at the expiration of that term, when he could have the privilege pro- longed for another fourteen years. Penalties were provided, which could not be exacted unless the books were registered with the Stationers' Com- pany, and which must be sued for within three months after the offence. If too high prices were charged, the Queen's officers might order them low- ered. A book could not be imported without writ- ten consent of the owner of the printing right. The number of deposit copies was increased to nine. The act was not to prejudice any previous rights of the universities and others. This act did not touch the question of rights at com- mon law, and soon after its statutory term of protec- tion on previously printed books expired, in 173 1, lawsuits began. The first was that of Eyre v. Walker, in which Sir Joseph Jekyll granted, in 1735, an in- junction as to "The whole duty of man," which had been first published in 1657, or seventy-eight years before. In this and several other cases the Court of Chancery issued injunctions on the theory that the legal right was unquestioned. But in 1 769 the famous DEVELOPMENT IN ENGLAND 25 case of Millar v. Taylor, as to the copyright of Thom- The crucial son's "Seasons," brought directly before the Court **^®* of King's Bench the question whether rights at com- mon law still existed, aside from the statute and its period of protection. In this case Lord Mansfield and two other judges held that an author had, at common law, a perpetual copyright, independent of statute, one dissenting justice holding that there was no such property at common law. The copyright was sold by Millar's executors to Becket, who prosecuted Donald- son for piracy and obtained from Lord Chancellor Bathurst a perpetual injunction. In 1774, in the famous case of Donaldson v. Becket, this decision was appealed from, and the issue was carried to the highest tribunal, the House of Lords. The House of Lords propounded five questions to The judges' the judges. These, with the replies,' were as follows: opinions I. Whether, at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale ; and might bring an action against any person who printed, published and sold the same without his consent? Yes, 10 to I that he had the sole right, etc., — and 8 to 3 that he might bring the action. II. If the author had such right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person afterward reprint and sell, for his own benefit, such book or literary composition against the will of the author? No, 7 to 4. III. If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is ' The votes on these decisions are given differently in the several copyright authorities. These figures are corrected from 4 Burrow's Reports, 2408, the leading English parliamentary reports, and are probably right. 26 COPYRIGHT The Lords' decision Protests Supplemen- tary legisla- tion an author, by the said statute, precluded from every remedy, except on the foundation of the said statute and on the terms and conditions prescribed thereby? Yes, 6 to 5. IV. Whether the author of any literary composi- tion and his assigns had the sole right of printing and publishing the same in perpetuity, by the common law? Yes, 7 to 4. V. Whether this right is any way impeached, re- strained, or taken away by the statute of 8th Anne? Yes, 6 to 5. These opinions, that there was perpetual copyright at common law, which was not lost by publication, but that the statute of Anne took away that right and confined remedies to the statutory provisions, were directly contrary to the previous decrees of the courts, and on a motion seconded by the Lord Chan- cellor, the House of Lords, 22 to 11, reversed the de- cree in the case at issue. This construction by the Lords, in the case of Donaldson v. Becket, of the statute of Anne, has practically "laid down the law" for England and America ever since. Two protests against this action deserve note. The first, that of the universities, was met by an act of 1775, which granted to the English and Scotch uni- versities (to which Dublin was added in 1801), and to the colleges of Eton, Westminster and Winches- ter, perpetual copyright in works bequeathed to and printed by them. The other, that of the booksellers, presented to the Commons February 28, 1774, set forth that the petitioners had invested large sums in the belief of perpetuity of copyright, but a bill for their relief was rejected. In 1801 an act was passed authorizing suits for damages [at common law, as well as penalties under statute] during the period of protection of the statute, DEVELOPMENT IN ENGLAND 27 the need for such a law having been shown in the case of Beckford v. Hood in 1798, wherein the court had to "stretch a point" to protect the plaintiff's rights in an anonymous book, which he had not entered in the Stationers' register. Meantime, during the Georgian period, there had The been much incidental copyright legislation. The pro- Georgian vision in the statute of Anne for the limitation of ^*"° prices was repealed by the act of 1739, which also con- tinued the prohibition of the importation of foreign reprints, further continued in later acts or customs regulations from time to time, until these were dis- posed of by the statute law revision act of 1 867. Copy- right had been extended to engravings and prints by successive acts of 1734-5 (8 George H, c. 13), 1766-7 (7 George IH, c 38) and 1777 (17 George III, c. 57) ; to designs for linen and cotton printing by acts of 1787, 1789 and 1794; to sculpture by acts of 1798 and 1814 (54 George III, c. 56). A private copyright act of 1734 granted to Samuel Buckley, a citizen and sta- tioner of London, sole liberty of printing an improved edition of the histories of Thuanus, and the engrav- ings act of 1767 contained a similar special provision for the widow of Hogarth. In 1814 also, copyright in books was extended to twenty-eight years and the remainder of life, and the author was relieved from delivering the eleven library copies then required, ex- cept on demand. The university copyright act of 1 775 (15 George III, c. 53), above mentioned, and the other acts given with specific citation above, still constitute, in certain unrepealed provisions, a part of the English law, although others of their provisions and other laws were repealed by later copyright acts or by the statute law revision act of 1861 or that of 1867. In the reign of William IV the dramatic copyright act of 1833 (3 William IV, c, 15) became, and in part 28 COPYRIGHT Legislation under William IV The Victo- rian act of 1842 remains, the basis of copyright in drama. The lec- tures copyright act of 1835 (5 & 6 William IV, c. 65) for the first time covered that field. In 1836 the prints and engravings copyright (Ireland) act (6 & 7 Wil- liam IV, c. 59) extended protection to those classes in that country, and another copyright act (6 & 7 Wil- liam IV, c. 1 10) reduced the number of library copies required to five. These laws also remain in force, in unrepealed provisions, as a part of British copyright law. In 1 841, under the leadership of Serjeant Talfourd, author of "Ion" and other dramatic works, a new copyright bill was presented to the House of Com- mons, in the preparation of which George Palmer Putnam, the American publisher, then resident in London, had been consulted. It provided for com- pulsory registration and extended the term to life and thirty years. The bill attracted little attention and met with no opposition until the second reading, when Lord Macaulay, a bachelor, interested in fame rather than profit to an author or his descendants, attacked the bill and "the great debate" ensued. Macaulay offered a bill limiting copyright to the life of the au- thor, but finally assented to a compromise, by which the term was made forty-two years or the life of the author and seven years, whichever the longer. The resulting copyright act of 1842 (5 & 6 Victoria, c. 45) presented a new code of copyright, covering the ground of previous laws, but not in terms repealing them. As a result, provisions not specifically repealed or superseded remained in force, and the act of 1842, though serving since as the basic act, has had to be construed with the previous acts in view. The bill practically preserved, however, the restrictions of the statute of Anne. The term of forty-two years or life and seven years is applied to articles in periodicals, but DEVELOPMENT IN ENGLAND 29 the right in these reverts to the author after twenty- eight years. The Judicieil Committee of the Privy Council may authorize the publication of a work which after the author's death the proprietor of the copyright refuses to repubhsh. In the same year, 1842, there was passed also a Protection copyright in designs act, covering designs for articles °* designs of manufacture, consolidating previous laws on this specific subject from 1787 to 1839 (two bills in this last year having extended protection to printing de- signs for woolen and other fabrics and to articles of manufacture generally), and providing for a registrar for such designs, — in which act the careless use of the word " ornamenting" seemed so to limit the scope that an amendatory act was passed in 1843. An international copyright act, introduced in the Subsequent first year of the Victorian reign, had been passed in **'*® 1838, to protect foreign books reprinted in England, but it proved inadequate and was repealed by the subsequent act of 1844 (7 & 8 Victoria, c. 12), provid- ing more comprehensively for international copyright, on the basis of registration and deposit in London. The colonial copyright act of 1847 (10 & 11 Victoria, c. 95) authorized copyright legislation by any colony, subject to the approval of the Crown, and the suspen- sion for such colony of the prohibition of foreign re- prints, which act is therefore often cited as the foreign reprints act. An act of 1850 further covered designs and provided for their provisional registration, and one in 1851 protected exhibits at the international exhibition of that year in London. A third interna- tional copyright act was passed in 1852 (15 & 16 Vic- toria, c. 12) covering translations and including an authorization of a special treaty with France. The fine arts copyright act of 1862 (25 & 26 Victoria, c. 68) extended copyright to paintings, drawings, and 30 COPYRIGHT photographs, hitherto unprotected, for life and seven years. A fourth international copyright act of 1875 (38 & 39 Victoria, c. 12) protected foreign dramatic works from imitation or adaptation on the English stage, which had been specifically permitted by the previous law, and in the same year "The Canada copy- right act" (38 & 39 Victoria, c. 53) gave effect to a Canadian parliament act respecting copyright reprints. The Royal "The law of England, as to copyright," says Commission the report of the Royal Copyright Commission, in 1878^*°* ^ blue-book of 1878, "consists partly of the provi- sions of fourteen Acts of Parliament, which relate in whole or in part to different branches of the subject, and partly of common law principles, nowhere stated in any definite or authoritative way, but implied in a considerable number of reported cases scattered over the law reports." The digest, by Sir James Stephen, appended to this report, is presented by the Commis- sion as " a correct statement of the law as it stands." This digest is one of the most valuable contributions to the literature of copyright, but the frequency with which such phrases occur as "it is probable, but not certain," "it is uncertain," "probably," "it seems," shows the state of the law, "wholly destitute of any sort of arrangement, incomplete, often obscure," as says the report itself. The digest is accompanied, in parallel columns, with alterations suggested by the Commission, and it is much to be regretted that their work failed to reach the expected result of an act of Parliament. The evidence taken by the Commission forms a second blue-book, also of great value. This report and digest covered legislation through 1875, inclusive of the Canada act. They seem also to have regarded, though the act is not specified in the schedule, the consolidated customs act of 1876 (39 & 40 Victoria, c. 36), which incidentally contained the DEVELOPMENT IN ENGLAND 31 provisions for the prohibition of the importation of copyright books. Despite the recommendations of the Commission Later and several later endeavors to pass a comprehensive legislation copyright act, — of which the most important was Lord Monkswell's bill introduced into Parliament on behalf of the British Society of Authors, November 16, 1890, and given in full with an analysis by Walter Besant in George Haven Putnam's "Question of copyright" — later legislation in England has been confined practically to two topics, international copy- right and the vexed question of musical compositions. The international copyright act of 1886 (49 & 50 international Victoria, c. 43) , amending and extending, and in part c°Py"gl't repealing the earlier international copyright acts and provisions, was intended to enable Great Britain, through Orders in Council, to become a party to inter- national agreements, particularly the Berne copyright convention of 1886, 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, tak- ing effect December 6, 1887. The convention was to extend to the British possessions, though with excep- tions in some respects. The revenue act of 1889 (52 & 53 Victoria, c. 42) extended the prohibition of importation to foreign works copyrighted under the act of 1886, "printed or reprinted in any country or state" other than that "in which they were first pub- lished," if registered as required by the customs au- thorities. The protection of musical compositions was in such Musical confused and unsatisfactory condition that special copyright legislation was necessary. The recent laws on this subject, described in detail in the chapter on drama- tic and musical copyright, include the copyright (mu- 32 COPYRIGHT Committee report of 1909 Imperial copyright conference of 1909 The pending biU sical compositions) act of 1882 (45 & 46 Victoria, c. 40) ; the copyright (musical compositions) act of 1888 (51 & 52 Victoria, c. 17) ; the musical (summary pro- ceedings) copyright act of 1902 (2 Edward VII, c. 15) ; and the musical copyright act of 1906 (6 Edward VII, . c. 36), — following the report of the Musical Copy- right Committee of 1904, —which successively met imperfections developed in applying the previous law. After the adoption of the revised international copyright convention signed at Berlin November 13, 1908, modifying the Berne-Paris conventions, a Committee on the law of copyright consisting of seven- teen publicists, authors, artists, publishers and others was appointed by minute of March 9, 1909, by the President of the Board of Trade, to consider and report upon the modification of domestic legislation in con- formity with the Berlin agreement of 1908. The Com- mittee made a report in December, 1909, strongly ad- vising that domestic legislation be brought into line with international practice and that the copyright term in Great Britain be for life and fifty years. With the report was printed a blue-book of minutes of evidence, containing valuable appendixes which in- cluded a projet de hi type (model bill) on copyright, drafted by the International Literary and Artistic Association, and an artistic copyright bill drafted by the Artistic Copyright Society. In the early part of 1909 an Imperial copyright con- ference was also held in London, attended by Crown officials and representatives from all of the self-gov- erning dominions, at which certain resolutions for copyright betterment were adopted. Its minutes and resolutions were also presented to Parliament. As a result of the deliberations and reports of these two bodies, "a bill to amend and consolidate the law relating to copyright" (i George V) was introduced DEVELOPMENT IN ENGLAND 33 Into the House of Commons July 26, 1910, in the names of Mr. Buxton, Mr. Solicitor-General, Colonel Seely and Mr. Tennant, the adoption of which would provide a copyright code similar in extent to the American code of 1909, and applicable throughout the British dominions, with the proviso that the self-governing dominions may accept or modify the code or legislate separately, and providing also for international copyright. The bill adopted most of the features of the Berlin convention including the term of life and fifty years, covered literary, dramatic, musical and artistic works, including architectural works of art, and while distinguishing between first publication and performance, included under copy- right acoustic or visual performance or exhibition and control for mechanical reproduction. The bill, somewhat modified, was re-introduced into the sub- sequent Parliament March 30, 191 1, emerged from committee with important alterations July 13, 1911, and was passed with slight additional changes by the House of Commons August 17, and first read in the House of Lords August 18,1911. On passage of the House of Lords, it becomes effective July i, 1912, unless earlier date is provided by Order in Council. The bill repeals by specific schedule all existing laws except specified sections in the fine arts copyright act of 1862, the musical copyright acts of 1902 and 1906, and the copyright provisions in the customs consoli- dation act of 1876 and the revenue act of 1889. The provisions of the new measure are specifically treated and summarized comprehensively in later chapters and the full text is given in the appendix. The bill does not, however, repeal the previous law Design as to copyright in designs, which had continued to patents receive consideration during the Victorian reign in laws, later than those cited, of 1858-1861, and thus 34 COPYRIGHT finally became merged in the protection of patents. Thus "designs capable of being registered under the patents and designs act, 1907," are specifically ex- cepted under clause 22 of the proposed copyright code. Common It seems possible that, under the precedent of the law rights ^cts of 1775 and i8oi,the common law rights prac- tically taken away by the statute of Anne and specifi- cally abrogated by the proposed bill, could have been restored by legislation. These restrictions have not only ruled the practice of England ever since, but they were embodied in the Constitution of the United States, and have influenced alike our legislators and our courts. IV THE HISTORY OF COPYRIGHT IN THE UNITED STATES The Constitution of the United States authorized Constitu- Congress "to promote the progress of science and tlonalprovi- useful arts by securing for limited times, to authors ^"'" and inventors, the exclusive right to their respective writings and discoveries." Previous to its adoption, in 1787, the nation had no power to act, but on Madi- son's motion. Congress, in May, 1783, recommended the States to pass acts securing copyright for fourteen years. Connecticut in January, 1783, Massachusetts in Early state March, 1783, and Maryland in April, 1783, had al- legislation ready provided for copyright, twenty-one years being the usual period. New Jersey on May 27, 1783, and New Hampshire and Rhode Island in December of the same year, followed Madison's suggestion. Penn- sylvania and South Carolina in March, 1784, Virginia and North Carolina in 1785, Georgia and New York in 1786, also passed copyright acts, so that all the thirteen States except Vermont had separately pro- vided for copyright, — thanks to the vigorous copy- right crusade of Noah Webster, who traveled from capital to capital, — when the United States statute of 1790 made them unnecessary. This act followed the precedent of the English act The act of of 1 710, and gave to authors who were citizens or ^79" residents, their heirs and assigns, copyright in books, maps and charts for fourteen years, with renewal for fourteen years more, if the author were living at ex- piration of the first term. A printed title must be deposited before publication in the clerk's office of 36 COPYRIGHT the local United States District Court; notice must be printed four times in a newspaper within two months after publication; a copy must be deposited with the United States Secretary of State within six months after publication ; the penalties were forfeiture and a fine of fifty cents for each sheet found, half to go to the United States; a remedy was provided against unauthorized publication of manuscripts. 1802-1867 This original and fundamental act was followed by others — in 1802, requiring copyright record to be printed on or next the title-page, and including de- signs, engravings and etchings; in 1819, giving United States Circuit Courts original jurisdiction in copy- right cases; in 1 83 1 (a consolidation of previous acts), including musical compositions, extending the term to twenty-eight years, with renewal for fourteen years to author, widow, or children, doing away with the newspaper notice except for renewals, and providing for the deposit of a copy with the district clerk (for transmission to the Secretary of State) within three months after publication; in 1834, requiring record of assignment in the court of original entry; in 1846 (the act establishing the Smithsonian Institution), requir- ing one copy to be delivered to that, and one to the Library of Congress; in 1855, a postal provision for free mailing of deposits; in 1856, securing to drama- tists the right of performance; in 1859, repealing the provision of 1846 for the deposit of copies, and mak- ing the Interior Department instead of the State De- partment the copyright custodian ; in 1 86 1, providing for appeal in all copyright cases to the Supreme Court; in 1865, including photographs and negatives, and again requiring deposit with the Library of Con- gress, within one month from publication; in 1867, providing $25 penalty for failure to deposit. This makes twelve acts bearing on copyright up to 1870, HISTORY IN THE UNITED STATES 37 when a general act took the place of all, including The re- " paintings, drawings, chromos, statues, statuary, and "sed act of models or designs intended to be perfected as works ^*^° of the fine arts." This did away with the local Dis- trict Court system of registry, and made the Li- brarian of Congress the copyright officer, with whom printed title must be filed before, and two copies de- posited within ten days after, publication. In 1873-4 the copyright act was included in the Revised Stat- utes as sections 4948 to 4971 (also see sees. 629 and 699), and in 1874 an amendatory act made legal 1874-1883 a short form of record, "Copyright, 18 — , by A. B.," and relegated labels to the Patent Office. In 1879 the Post Office appropriation bill contained a proviso against the transmission of any publication which violates copyright; in 1882 an amendment dealt with the position of the copyright notice on moulded, dec- orative articles, etc. In 1891 there was passed, after a long campaign, Intema- the sd-called international copyright act, extending tional copy- copyright to the citizens of other nations in case of lation 1801 reciprocal grants by such nations, and providing that the copyright on books and certain other articles should be conditioned on manufacture in the United States. In 1893 an amendatory act gave the same effect to copies deposited "on or before publication." In 1895 the public documents bill provided that no government publication should be copyrighted, and another bill imposed penalties in the case of infringe- ment of photographs and of original works of art. In 1897 an act provided that unauthorized representa- tion, wilful and for profit, of any dramatic or musical composition is a misdemeanor punishable by impris- onment; another act provided for the appointment of a Register of Copyrights under the direction and supervision of the Librarian of Congress; and a 38 COPYRIGHT Private copyright acts American possessions third act provided penalty for printing false claim of copyright and prohibited the importation of arti- cles bearing a false claim of copyright. In 1904 pro- vision was made for protection to exhibitors of foreign literary, artistic or musical works at the Louisiana Purchase Exposition. A bill of 1905 permitted ad interim copyright for one year of books published abroad if registered here within thirty days after pub- lication and bearing notice of reservation. A curious incident in American copyright legisla- tion has been the passage of private copyright acts, nine in all, of which the earliest in 1828, as amended in 1830 and 1843, continued the copyright of John Rowlett "in a useful book, called Rowlett's Tables of discount and interest" from its original publication in 1802 till 1858, — curiously the present period of fifty- six years. In 1849 the copyright of Levi H. Corson in a perpetual calendar or almanac was renewed by spe- cial act. In 1854 an appropriation of $10,000 was made to Thomas H. Sumner for his new method of ascertaining a ship's position and the copyright was extinguished. In 1859 a special act gave to " Mistress Henry R. Schoolcraft" and her heirs for fourteen years the right to republish her husband's work on the Indian tribes originally published by order of Con- gress and to make any abridgement thereof, and a similar special copyright was voted in 1866 for Hern- don's "Exploration of the Amazon" for his widow. An act of 1874 authorized the validation of William Tod Helmuth's work on surgery which had been im- perfectly entered for copyright two years before, and a ninth private act in 1898 validated for like reason the copyright of Judson Jones in a work on orthoepy. In 1900 the act for the government of the territory of Hawaii repealed the Hawaiian copyright act of 1888 and extended United States copyright to HawJiiil HISTORY IN THE UNITED STATES 39 In the same year the act providing temporary gov- ernment for Porto Rico extended the copyright laws to that island. In 1904 the Attorney General rendered an opinion that Philippine authors were entitled to United States copyright but that the book must be manufactured within the United States. Hawaii, Porto Rico and the Philippine Islands, as well as Alaska, were later included by name in the jurisdic- tion of the code of 1909. American copyright was extended to the Canal Zone by War Department order in 1907. Finally, in 1909, there was passed the new copy- XheAmeri- right code repealing all previous legislation and pro- "=^ ^°^^ °* viding comprehensively for the whole subject of ^'°' copyright, literary, artistic, dramatic, musical, or other. Under this code copyright is effected by pub- lication with the statutory notice of copyright and completed by registration of two deposit copies sent to the Copyright Office promptly after publication. The manufacturing clause is continued and extended to require printing and binding as well as typeset- ting within the United States. The musical author is given control over mechanical reproductions though under provision for compulsory license in case he permits any such reproduction. The copyright term is for twenty-eight years with a like renewal term, making fifty-six years. Rights of performance are included under copyright, and unpublished works are specifically protected by special registration. These are the salient features of the code which is stated and discussed in detail in succeeding chapters. In line with the dramatic act of 1897, the dramatic State authors between 1895 and 1905 procured state legis- protection of lation in the States of New Hampshire, New York, ' *^^ Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, 40 COPYRIGHT Citations Trade-Mark act Common law rela- tions Connecticut and Michigan, differing somewhat in form, to give effect to the federal copyright laws in respect to dramatic performance or to apply the prin- ciples of common law through the punishment of dramatic companies disregarding performing rights. Citations of all these laws will be found in Appen- dix A of the report of copyright legislation from the Register of Copyrights, included in the report of the Librarian of Congress for 1904; and the full text of the United States acts, except the later ones, are given in "Copyright Enactments 1783-1904" issued from the Copyright Office in 1905 as Bulletin No. 3, and in a second revised and enlarged edition, extending to 1906, reissued in 1906. The Trade-Mark act of Feb- ruary 20, 1905, supplemented by an act of May 4, 1906, covers the protection of labels, etc., excluded from copyright by the copyright act, and is given, with a list of trade-mark laws of foreign nations, and trade-mark treaties with them, rules, indexes, etc., in a Government publication, entitled "United States Statutes concerning the registry of trade-marks with the rules of the Patent Office relating thereto." The act of 1790 received an interpretation, in 1834, in the case of Wheaton v. Peters (rival law reports), at the bar of the U. S. Supreme Court, which placed copyright in the United States exactly in the status it held in England after the decision of the House of Lords in 1774. The court referred directly to that decision as the ruling precedent, and declared that by the statute of 1790 Congress did not affirm an existing right, but created a right. It stated also that there was no common law of the United States and that (English) common law as to copyright had not been adopted in Pennsylvania, where the case arose. So late as 1880, in Putnam v. Pollard, claim was made that this ruling decision did not apply in New York, HISTORY IN THE UNITED STATES 41 which, inits statute of 1 786, expressly "provided, that nothing in this act shall extend to, affect, prejudice, or confirm the rights which any person may have to the printing or publishing of any books or pamphlets at common law, in cases not mentioned in this act." But the N. Y. Supreme Court decided that the pre- cedent of Wheaton v. Peters nevertheless held. Dur- ing the discussion of the present copyright code, Ed- ward Everett Hale consulted with other veteran authors whose early works were passing out of copy- right, with the intention of bringing a test case for the extension of copyright under common law after the expiration of the statutory period. But on proposing such a case to legal counsel he became assured that such a suit could not be maintained. As in the English case of Donaldson v. Becket, Divided the decision in the American ruling case of Wheaton opinions V. Peters came from a divided court. The opinion was handed down by Justice McLean, three other judges agreeing, Justices Thompson and Baldwin dis- senting, a seventh judge being absent. The opinions of the dissenting judges, given in Eaton S. Drone's "A treatise on the law of property in intellectual productions," constitute one of the strongest state- ments ever made of natural rights in literary pro- perty, in opposition to the ruling that the right is solely the creature of the statute. "An author's right," says Justice Thompson, "ought to be es- teemed an inviolable right established in sound rea- son and abstract morality." There seems, indeed, to be a sense of natural copyright among the American Indians; an Ojibwa brave will not sing the song be- longing to another tribe or singer, and a Chippewa youth may learn his father's songs, on a customary gift of tobacco, but does not inherit the right to sing them. SCOPE OF copyright: rights and extent General scope American provisions Oral ad- dresses Dramas 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. The new American copyright code, passed March 4, 1909, and in force July i, 1909, in its fundamental provision broadly sets forth and specifically defines the scope of copyright, by providing (sec. i) : "That any person entitled 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, exe- cute, and finish it if it be a model or design for a work of art; " (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; " (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 manuscript or any record whatsoever thereof; to make or to procure the making of any transcription SCOPE 43 or record thereof by or from which, in whole or in part, it may in any manner or by any method be ex- hibited, performed, represented, produced, or repro- duced: and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method what- soever ; " (e) To perform the copyrighted work pubUcly Music 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 pro- viso requiring the licensing of mechanical musical reproductions in case the copyright proprietor per- mits any reproduction by that means, which proviso is given in full in the chapter on mechanical music. The American law previously defined the scope of Previous copyright (Rev. Stat. sec. 4952), as "the sole liberty American of printing, reprinting, publishing, completing, copy- ing, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly per- forming or representing it, or causing it to be per- formed 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. The new American code is specific in preserving to Unpublished an author previous to the publication of his work all ^''^s 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 44 COPYRIGHT Common law scope Common law in U. S. practice Statutory limitations unpublished work without his consent, and to obtain damages therefor." In the Washburn form of the copyright bill it was proposed to include a clause to the effect "that sub- ject to the limitations and conditions of this Act copy- right secured hereunder shall be entitled 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. 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 dif- ferent States or where the rule adopted is not in ac- cord 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. 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 SCOPE 45 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 dam- ages 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. Thus the owner of a copyrightable work may (be- General fore publication), as with other personal property, "eWs preserve his work exclusively for his own use, or he may (i) 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 (il) perform or represent it, or (as in 5) vend any manuscript or record thereof, or (12) make or caus6 to be made any transcription or record thereof; or (13) exhibit, per- form, 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 46 COPYRIGHT Inferential lights Differen- tiated rights Court pro- tection Division of rights If a design for a work of art, he may (i8) 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. 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 pass by inheritance, — as pointed out by Arthur Steuart, chairman of the Copyright Commit- tee of the American Bar Association, in his argument before the Congressional Committees. 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. The rights scheduled, adds Mr. Steuart, the courts will protect (a) "in equity by injunction and the re- covery of profits" ; or (b) " at law by a civil action for trespass or conversion, with a recovery of special dam- ages for actual injury or punitive damages for injury to reputation, or by replevin for the recovery of pos- session of the work, as well as by any oth^ form of action known to the common law or statute law and proper to the protection of this class of property." 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 "Sdition 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 restric- SCOPE 47 tions, agreed upon with the purchaser or imposed upon the title in the deed of transfer. As in the fre- quent 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. In an elaborate discussion of fundamental princi- Analysis of pies in his opinion in Harper v. Donohue, in 1905, property affirmed by the Circuit Court of Appeals in 1906, "^*® Judge Sanborn analyzed the property rights of an author before publication, after unrestricted publica- tion and after publication under the copyright acts. Among the rights before publication he mentions "the right to sell and assign 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." "Unre- stricted 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, ex- cept all right of transfer and sale, which remains to the author; but without advantage, since the work has beconfe, 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 multi- plication and sale of copies ; to sell or transfer the un- limited 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 copy- right either generally, or in one or more countries whose laws permit it, either in the name of the author 48 COPYRIGHT Broad in- terpretation Limits of protection Differen- tiated con- tracts or assignee: 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 prin- ciples as to such rights. In the case of Press Pub. Co. V. Monroe, the court said: "The right of property includes the right to trans- fer the subject of it or any interest in it by gift, grant, or device. And if the fruits of mental effort are re- garded as property, like all other possessions, they descend to the legatees, the executors, and adminis- trators of their creditors; they pass by sale or gift to their transferees; the use of them, limited or unlim- ited, 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." 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 ques- tions 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. In respect to the rights to give, lend, grant, manu- facture, 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 pub- lication; and either the copyrightable manuscript or grants SCOPE 49 the copyrighted work may pass by inheritance. Thus an author may manufacture, or cause to be manu- factured, his unpublished work, and he may retain exclusive control over the manufactured copies so long as he pleases before publishing 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. In respect to the right to limit the use of his work Enforcement under his sale, gift, loan, grant, lease, etc., for a spe- |^„'^^**'* cial purpose or at a special price, or for a special time, or in a special locality or to a special person, these powers of limitation, though implied in the grant of copyright, are dependent for their enforcement rather upon the law of contracts than upon copyright law. There can be no such thing as a copyright for a special purpose or for a special locality, or under other special conditions, for there can be only one copyright, and that a general copyright, in any one work. But specific contracts can be made, enforceable under the law of contracts, as for the sale of a copyrighted book within a certain territory, provided such contracts or limitations are not contrary to other laws. Although record of assignment in the Copyright Office is pro- vided for by the law only for the copyright in general, the separate estates as a right to publish in a periodi- cal and the right to publish as a book may be sold and assigned separately, and the special assignment re- corded in' the Copyright Office, though this does not convey a right to substitute in the copyright notice a name other than that of the recorded proprietor of the general copyright, which can only be changed as 50 COPYRIGHT. specifically provided in the law under recorded as- signment of the entire copyright. Copyright as Copyright is a monopoly to which the government monopoly assures protection in granting the copyright. It is a monopoly not in the offensive sense, but in the sense of private and personal ownership; the public is not the loser but is the gainer by the protection and en- couragement given to the author. The whole aim of copyright protection is to permit the author to sell as he pleases and to transfer his rights collectively or severally to such assigns as he may choose. Copy- right is a monopoly only in the sense that any owner- ship is a monopoly. Says Herbert Spencer: " If I am a monopolist, so also are you ; so also is every man. If I have no right to those products of my brain, neither have you to those of your hands. No one can become the sole owner of any article whatever; and all pro- perty is ' robbery. " ' In the copyright debates of 1 89 1 , Senator O. H. Piatt rightly said: "The very essence of copyright is the privilege of controlling the market. That is the only way in which a man's property in the work of his brain can be assured." And as Senator Evarts pointed out in the same debate: "The sole question is what we shall do concerning something which is the essential nature of copyright and patent protection, namely, monopoly." In discussing patent monopoly and the law of contracts in Victor Talking Machine Co. v. The Fair, the U. S. Circuit Court of Ap- peals, through Judge Baker, said, in 1903, that "within his domain the patentee is czar. The people must take the invention on the terms he dictates or let it alone for seventeen years." Thus as the government grants and guarantees the monopoly, it is not to be taken as in restraint of trade or otherwise contrary to law. Said Judge CuUen in the case of Murphy v. Christian Press Association, in the Appellate Division of the SCOPE 51 N. Y. Supreme Court, in 1899, decisions as to agree- ments in restraint of trade "have no application to agreements concerning copyrights and patents, the very object of which is to give monopolies." Copyright being in essence a monopoly giving to Limit only in the copyright proprietor "exclusive rights," as the *®'™ ^ Constitution provides, the only limitation upon it should be that indicated in the Constitution which confines protection to "limited times." The oppo- nents of copyright have frequently taken the course of falling back upon the plea that in the interests of the public the author should not have exclusive right to his writings and to manage his own affairs, but that Congress should prescribe how he should mar- ket his property. This commonly takes shape in the licensing scheme known in England as the Farrer plan and in America as the Pearsall-Smith plan, with re- spect to books; and in the passage of the "interna- tional copyright amendment" of 1891 this plan was made the basis of attack upon the measure. An analysis of the scheme as presented by R. Pearsall- Smith of Philadelphia is given by G. H. Putnam, from the book publisher's point of view, in the " Ques- tion of copyright." In the work on "The law and history of copyright," by Augustine Birrell, a mem- ber of the present British cabinet, this plan is charac- terized as a " preposterous scheme." In the case of a book, for instance, a publisher often suggests to the author the general idea of the book, so that it would be doubly unjust to permit any other publisher to issue that book on the compulsory license scheme; and this might hold true, although to less extent, in other fields of copyright. In any event, the original pub- lisher makes large investment not only in type-setting, printing, and binding a book, or in the publishing of any other work, but in advertising and making a 52 COPYRIGHT Altered theory of copyright Publishing market, and that a rival publisher should have the benefit of this market without paying the cost is a violation of the very essence of property. This scheme, however, is applied, in a limited way and as a compromise, respecting mechanical music, in the American code of 1909, and constitutes its most seri- ous defect. There is question, indeed, whether the compulsory license and fixed price may not be an un- constitutional provision. This matter is more fully discussed in later chapters. It should be noted that whereas the previous American law required certain statutory formalities before publication, the new American code somewhat alters the theory of copyright, and more nearly con- forms statutory with common law, by making publi- cation with notice the initial copyright act and regis- tration and deposit secondary acts necessary for the completion of the copyright and its protection under the statute. The definition of the date of publication (sec. 62) as "the earliest date when copies of the first author- ized edition were placed on sale, sold, or publicly dis- tributed by the proprietor of the copyright or under his authority " remedies the vagueness of the previous law and adopts into the statute court decisions to the effect that acts not by the authority of the author or proprietor do not constitute publication in the sense of dedication to the public. In other words, it is made clear that the right to publish inheres in the author and that he cannot be divested of it without his con- sent. This is the fundamental principle of the new law in the vital matter of protecting the author at the critical point at which an unpublished work, abso- lutely his own, becomes a published work, subject to statute. In this respect the American code of 1909 comes very close to the acceptance of the right SCOPE 53 in intellectual property as a natural and inherent right. As to what constitutes publishing, interpretation What con- by the courts based on previous law will in many stitutes pub- respects be applicable to the new code. A book which ^ ^ has been sold or leased to subscribers on a contract of restricted use is none the less published, as was set forth in the opinion by Chief Judge Parker of the N. Y. Court of Appeals in Jewellers' Mercantile Agency v. Jewellers' Weekly Pub. Co. in 1898, and in the opinion by Judge Putnam of the U. S. Circuit Court in Massachusetts in Ladd v. Oxnard in 1896, both having reference to credit-rating books leased to subscribers for their individual use. Publication depends upon sale or offer to the pub- "Privately lie, and it is a question whether the sale or offer of a Panted " copyrightable work, as the proceedings or publica- tions of a society, to the members of that society only, constitutes publication, to be passed upon by the courts in view of the specific facts. A work "privately printed" or with the imprint "printed but not pub- lished," given or even sold by the author to his friends, and not sold generally by his authority, would probably not be held to be published ; but the courts would probably hold that the sale of a work, though " privately printed," to merely nominal mem- bers of a nominal society, made up of the purchasers of the work, would constitute publication and, if with- out copyright notice, dedication. As to the right to copy, this word in the broad sense Copying as interpreted by the courts, covers the duplicating or multiplying of copies within the stated scope of the statute. It was argued in the mechanical music cases that the word copy extends to any form or method of duplication by which the thought of the author can be recorded or conveyed, but, as more fully stated in 54 COPYRIGHT Vending Control of sale the chapter on mechanical music, the U. S. Supreme Court in White-Smith v. Apollo Co. in 1908 upheld the decision below that a perforated roll is not a copy in fact of staff notation, and thus limited the statu- tory use of the word to duplication by similar or corresponding process. It was for this reason that such specific phrases as " to make any other version," "to convert," " to arrange or adapt," " to make tran- scription or record" were included in the new code, although these would be included in the broader sense of the right "to copy." The right to vend covers by a comprehensive word those general rights of sale through which only can the author obtain remuneration for his work. The most important question which has arisen in respect to the application of this word, which is used both in the previous laws and in the present code, has been as to the use of this exclusive right to limit the condi- tions of sale after the original sale from the author or proprietor as vendor to the immediate vendee. The courts have in general held that the copyright and patent laws, while creating a legal monopoly for the author or original proprietor, do not authorize any continuing control, and have indeed gone so far as to indicate that a sale is absolute and complete un- less limited by special contract within the principles of common or statutory law of contracts. In the leading case of Keeler v. Standard Folding Bed Co., the U. S. Supreme Court in 1895, through Justice Shiras, said: "Upon the doctrine of these cases we think it fol- lows that one who buys patented articles of manu- facture from one authorized to sell them becomes possessed of an absolute property in such articles, unrestricted in time or place. Whether a patentee may protect himself and his assignees by special con- SCOPE 55 tracts brought home to the purchaser is not a ques- tion before us and upon which we express no opinion. It is, however, obvious that such a question would arise as a question of contract, and not as one un- der the inherent meaning and effect of the patent laws." This question in specific relation to copyrights Specific again came before the U. S. Supreme Court in a series relation to of cases, known as the Macy cases, between Isidor the^Macy and Nathan Straus doing business as R. H. Macy & cases Co., on the one side, and the Bobbs-Merrill Co. and Charles Scribner's Sons as the respective defend- ants. In both cases, the publishers had sought to main- tain the retail price of a book, as a right under the copyright law. The Bobbs-Merrill Co. copyrighted the "Castaway" May i8, 1904, and immediately below the copyright notice printed the following in each copy: "The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright." The Scribners sought to accomplish the same pur- pose as to their copyright books by printing in their catalogues, invoices and bills of goods the following notice: "Copyrighted net books published after May I, 1901, and copyrighted fiction published after Feb- ruary I, 1902, are sold on condition that prices be maintained as provided by the regulations of the American Publishers' Association." New dealers were required by the American Pub- lishers' Association, in consideration of a discount al- lowed by the publisher in question, to enter into an agreement as indicated, but this agreement Macy & Co. refused to accept and they bought books as best they could and sold them at "cut rates," thus indue- 56 COPYRIGHT ing dealers from whom the purchases were made to violate the agreement with the pubUshers. The Bobbs- In the leading case of Bobbs-Merrill Co., appellant, MerriU case j,. Straus, the opinion of the U. S. Supreme Court was delivered June i, 1908, by Justice Day, who said: "The precise question in this case is, does the sole right to vend (named in section 4952) secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one under- taking to sell for less than the named sum? We do not think the statute can be given such a construc- tion, and it is to be remembered that this is purely a question of statutory construction. There is no claim in this case of contract limitation, nor license agree- ment controlling the subsequent sales of the book. In our view the copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of con- tract." The Scribner In the Scribner case the decision delivered on the case same day by the same justice, upheld the lower courts in their view, "that there was nothing in any of the notices of a claim of right or reservation under the copyright law," and "that independent of statu- tory law " the question of relief in equity was not open to the federal courts because there was no diversity of citizenship nor claim above $2000 "requisite to con- fer jurisdiction of questions of rights independent of the copyright statutes." On the allegations of the SCOPE 57 bill as to alleged contributory infringement by induc- ing dealers to sell in violation of agreement, on which the lower courts held that complainants had not proved an agreement based upon their printed notice, the Supreme Court declined to review the question of fact. In the English case of Larby v. Love, in 191 o, how- English ever. Justice Bucknill in the King's Bench held the underselling defendant liable for damages for the sale of certain "^*^^ maps to undersellers in disregard of prohibitions specified in the bill of sale. The Macy cases included suits in the New York Suits under State courts by Straus v. American Publishers' Asso- s**te law elation ef al., claiming that the action of the publishers in endeavoring to maintain rates constituted a con- spiracy in restraint of trade contrary to the statutes. The N. Y. Court of Appeals held, through Chief Judge Parker, that the agreements would have been free from legal objections if confined solely to copy- right publications, but were contrary to the statute in affecting the right of a dealer to sell books not copy- righted at the price he chooses. The copyright side of the question was again pressed in the lower courts and reached the Court of Appeals a second time in 1908, when it was passed upon by a divided court, four to three, Judge Gray for the court declining to review its previous action. The dissenting judges, through Judge Bartlett, held that the decision of the U. S. Supreme Court in the Bobbs-Merrill case did apply in the current case and that the State Court of Appeals should therefore conform its decision to the finding of the federal Supreme Court. The ques- tion has been brought into the federal courts in a new series of suits, and it has yet to be finally settled by the U. S. Supreme Court, whether the legal monopoly conferred by the copyright statute safe- 58 COPYRIGHT Translating "Other ver- sion " Translating term guards the copyright proprietor against certain pro- visions of the anti-trust laws, state or national. The right "to translate into other languages or dia- lects" is strengthened in the new American code by the addition of the phrase " or to make any other ver- sion thereof," and the author is thus given exclusive right and entire control as to translation of his original work by himself or others, without specific reserva- tion of rights except as implied and included in the general copyright notice. The broad phrase "make any other version thereof" may cover not only trans- lation into another language, but into another literary form as from prose into poetry or vice versa. No case involving construction of this phrase seems yet to have arisen to be decided by the courts; but the au- thor of a narrative poem, like Owen Meredith's "Lu- cile" or Tennyson's "Enoch Arden," could probably prevent the transformation of his poetical work into equivalent prose ; and a novelist would have probably a like protection in case of an attempt to duplicate or transform his story as a narrative poem. This view is confirmed by the analogous specific protection of the right to dramatize a work or convert a drama into non-dramatic form. The exclusive right "to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work ; to dram- atize it if it be a non-dramatic work" are granted by the act for the same period as the term of original copyright and the renewal term, instead of for a shorter period, as ten years, as is the case in certain foreign legislation. The right to translate or to dram- atize is separate from the right to copyright a trans- lation or dramatization, as is shown by the fact that a translation or dramatization can be separately copy- righted for a term extending from its own date of SCOPE 59 publication and therefore possibly beyond the copy- right term of the original work, though on the ex- piration of the primary copyright any one else may make a translation or dramatization despite the con- tinuing existence of the copyright in the authorized translation or dramatization. These subjects are more specifically discussed for translations under the subject-matter of copyright and for dramatizations under dramatic and musical copyright. The exclusive right to deliver orally addresses and Oral delivery similar productions is now specifically included in the American law, as in the laws of some other coun- tries, and probably involves the right to register, be- fore publication, any literary production intended for oral delivery before it is printed in a book or periodical. Thus if Mr. Cable desires to include in his readings, especially if in public for profit, chapters from an unpublished novel, or a poet desires to pro- tect his copyright in a poem which he publicly recites, it may be desirable that he should register such un- published work under the provisions of the act for that purpose; although it is a generally accepted doctrine that oral delivery does not constitute publi- cation, and that the matter orally delivered may thus be protected at common law. It should be noted that in the case of a lecture or "Publicly other work for oral delivery and of a musical compo- ^^ ^°^ p'"" sition, the exclusive right is given for its delivery or performance " publicly and for profit," and in the case of a drama, "publicly," the words for profit being, probably by inadvertence, omitted. There is some question, therefore, whether a copyrighted lecture, drama, or musical composition can be given without consent of the author privately, or, except in the case of a drama, gratuitously before the public. In view of the special exception (sec. 28) exempting oratorios, fit" 6o COPYRIGHT etc., performed for charitable or educational purposes and not for profit, from authorization or payment, as well as on general principles of construction, it would seem probable that the courts would protect the au- thor of a lecture, drama, or musical composition, ex- cept in such instances as a private rendering in a private house, to which there was not public admis- sion and at which no fee was charged or collection taken. The cases bearing on this point are given in the later chapter on dramatic and musical copy- right. Material and The American code adopts into the law an impor- immaterial tant distinction as between the property in the ma- property terial and the immaterial rights, hitherto somewhat uncertain, in the following provision (sec. 41): "That the copyright is distinct from the property in the ma- terial object copyrighted, and the sale, or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a trans- fer of the title to the material object; but nothing in this Act shall be deemed to forbid, prevent, or re- strict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained." The negative provision in this section was inserted in the new copyright law apparently to differentiate it from patent law with the intent of preventing the proprietor of a copyrighted work from controlling the conditions of sale after copies had left his possession. It is doubtful what, if any, effect this provision may have, as the phrase "lawfully obtained" would scarcely have the result of limiting and annulling contractual conditions of sale. The innocent purchase of a stolen book would not relieve the purchaser from the necessity of returning the stolen property to its proper owner, although as far as intent, know- SCOPE 6i ledge, and payment are concerned, he would have "lawfully obtained" it. The scope of copyright cannot be extended to cover Schemes not a business or other scheme described in a copyrighted copyright- book, as was held in 1906 in Burk v. Johnson by the * ^ Circuit Court of Appeals in denying relief under copyright protection to the originator of a mutual burial association who copyrighted the articles of association. The new British measure defines copyright to mean The new "the sole right to produce or reproduce the work or British code any substantial part thereof in any material form whatsoever and in any language," thus assuring rights of translation hitherto imperfect or doubtful; " to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work"; and specifically includes the sole right of dramatization (from an "artistic," as well as other non-dramatic work),novelization, and reproduction by mechanical means (though with compulsory license provision as to reproduced music). A copyright may be assigned or licensed "either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copy- right or for any part thereof." "Copyright or any similar right in any literary dramatic musical or artistic work, whether published or unpublished," is expressly denied "otherwise than under and in accordance with the provisions of this Act" or other statutory enactment ; and thus common law seems to be totally abrogated. Hitherto common law property in an unpublished work has been absolute and co-existed with statutory remedies up to publi- cation, as was strongly upheld in 1908 in Mansell v. Valley Printing Co. in the English Court of Appeal. 62 COPYRIGHT As to published works, the new code continues the set- tled law reiterated as late as 1910 in Monckton v. The Gramaphone Co., where Justice Joyce in the Chan- cery Division denied the common law claim of the author of a song printed with prohibition of mechani- cal production, on the ground that after publication there was no copyright except as given by statute. Foreign The statutes of foreign countries are in general of statutes similar scope, though with variations of extent and phraseology in the several countries. The broadest seems to be that of Siam, above cited, translating com- mon law rights into statutory privilege, though that country also contradictorily limits copyright in books by a manufacturing clause. Spain specifically protects works produced or published by "any kind of im- pression or reproduction known now or subsequently invented," as elsewhere quoted. France specifically gives an author right to assign his property in whole or in part — a right which is probably in- cluded in other countries under the general construc- tion of statutory rights in property. International The international copyright convention, as modified provisions a,t Berlin, does not define the scope of copyright, but insures for authors the enjoyment of such rights as the domestic laws accord to natives ; but in its several articles it makes specific provision as to representa- tion, translation, adaptation, mechanical reproduc- tion, etc., as set forth in the chapter on international copyright conventions. Common law, or a crude equivalent for it, as en- forced by the courts, seems to extend copyright protection, in the absence of specific legislation, in Montenegro, Egypt and Liberia, Honduras, the Do- minican Republic, and Uruguay, as formerly in Argentina. VI SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE COPYRIGHTED The subject-matter of copyright should include, in Subject-mat- the nature of things, those products of invention, ter in general creations of the human brain, which are realized and utilized immaterially through material records, and not, as in the case of patents, materially through the material itself. Copyrightable works, in brief, are those which appeal from the imagination to the imagination, or in which intellectual labor combines immaterial product into new form. What may be copyrighted specifically and. practically depends, under present conditions of law, upon the statutory provisions, national or international, of the several nations of the world. The new American code gives the following classi- Classifica- fication of copyrightable works: ^°^ " (Sec. 5.) That the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs : "(a) Books, including composite and cyclopaedic works, directories, gazetteers, and other compila- tions; "(b) Periodicals, including newspapers ; "(c) Lectures, sermons, addresses, prepared for oral delivery ; "(d) Dramatic or dramatico-musical compositions ; "(e) Musical compositions; "(f) Maps; "(g) Works of art; models or designs for works of art; 64 COPYRIGHT Prints and labels excluded All the writings of an author Component parts Compila- tions, new editions, etc. "(h) Reproductions of a work of art; "(i) Drawings or plastic works of a scientific or technical character; "(j) Photographs; "(k) Prints and pictorial illustrations: "Provided, nevertheless, That the above specifica- tions shall not be held to limit the subject-matter of copyright as defined in section four of this Act, nor shall any error in classification invalidate or impair the copyright protection secured under this Act." Prints or labels "not connected with the fine arts," but "designed to be used for any other articles of manufacture," are subject only to registration in the Patent Office in accordance with the act of June i8, 1874. It is enacted (sec. 4): "That the works for which copyright may be secured under this Act shall in- clude all the writings of an author," thus linking the phraseology of the law with the provision in the Constitution of the United States in which the word "writings" is used, with the effect of construing that word by the classification above cited. It is also enacted (sec. 3): "That the copyright provided by this Act shall protect all the copyright- able component parts of the work copyrighted, and all matter therein in which copyright is already sub- sisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copy- righted under this Act." It is also enacted (sec. 6): "That compilations or abridgments, adaptations, arrangements, dramati- zations, translations, or other versions of works in the public domain, or of copyrighted works when pro- SUBJECT-MATTER 65 duced with the consent of the proprietor of the copy- right in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be con- strued to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works." The provisions of the law regarding the subject- Non-copy- matter of copyright are completed by the negative rightable ■ * works provision: " (Sec. 7.) That no copyright shall subsist in the original text of any work which is in the public do- main, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copy- righted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof: Provided, however. That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor." It is not to be inferred from the provision as to Government Government publications, that the United States "se has itself a right to use copyright material without consent of the copyright proprietor. The sovereignty of the nation is not to transgress the rights of private property, unless in the necessary exercise of war or police powers, as the sovereign state cannot take land over which it is theoretically sovereign from a private 66 COPYRIGHT "Author" and "writ- ing" defini- tions Interpreta- tion by Con- gress and courts owner except for public purposes and then only by condemnation proceedings at law and with fair re- muneration to the proprietor. No right of eminent domain in respect to copyrights is asserted by the United States, and the provision means only that material, otherwise copyrightable, furnished by a public officer or otherwise to the Government, be- coming the property of the Government, is put freely at the service of the people. The constitutional provision is thus given the broadest interpretation in the act. In the narrow sense the dictionaries define "author" as "one who composes or writes a book" (Webster), and "writing" variously as " a record made by hand," " a production of the pen," "any expression of thought in visible words" (Century); "anything expressed in letters" (Webster, Stormonth, Standard) ; "a written paper," "a legal instrument" (Johnson); "a literary produc- tion" (Chambers); "forming by the hand letters or characters on paper or other suitable substance" (Bouvier's Law Dictionary) ; "words made legible by any device," "a document, whether manuscript or printed, as opposed to mere spoken words" (Rapalje and Lawrence, Law Diet.); "expression of ideas by visible letters" (Anderson's Diet, of Law). For years Massachusetts voters cast a handwriting ballot, until the courts held that a printed ballot fulfilled the "written ballot" requirement of the Massachusetts constitution. But in the wider sense an author is "a creator, an originator" (Webster, Standard), and a writing is the record or expression of a thought or idea. Congress, upheld by the courts, had specifically included (law of 1870) under "writings" in the Con- stitution a "statue," "statuary," "model," without requiring the artist to make a preliminary sketch (if that be specifically a writing) — otherwise, as sculp- SUBJECT-MATTER 67 tors are not " inventors " making "discoveries," they could not be protected at all ; and in other countries protection has been extended to oral delivery of an address presumably but not necessarily written. It might be claimed, under a restrictive interpretation of the Constitution, that only works specifically relat- ing to "science and useful arts" might be protected, although literature and the fine arts are admittedly especial subjects of copyright. While it is for the judiciary and not for the legislature to construe or interpret the Constitution, the right of Congress to pass laws based upon its understanding of the Con- stitution, subject to the final decision of the federal courts, has not been challenged. And the code of 1909 by its classification (sec. 5) and its inclusive clause (sec. 4) is most comprehensive in this respect. The U. S. Supreme Court, in 1884, in the decision of Supreme Burrow-Giles Lith. Co. v. Sarony, extending the prin- *'°"^ '*^'*" ciples of the copyright act to cover photographs, said through Justice Miller: "By 'writings' is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writings, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list of 1802 is prob- ably that they did not exist, as photography as an art was then unknown." It seems evident that the phrase "visible expression" as used in this decision was intended to give a broad definition and not to nar- row the definition by the exclusion, for instance, of "audible expression," as otherwise the performance of a drama or of a musical composition could not be included under copyright protection. This view is confirmed by the later decision of the same court, in 1899, in Holmes v. Hurst: " It is the intellectual pro- 68 COPYRIGHT Originality and merit "Book" definitions duction of the author which the copyright protects, and not the particular form which such production ultimately takes; and the word 'book' is not to be understood in its technical sense as a bound volume, but any species of publication which the author se- lects to embody his literary product." The courts are disposed to extend copyright to any work involving intellectual labor or brain skill, with- out emphasizing originality or literary merit. In the important case of Walter v. Lane, in which a verbatim report of Lord Rosebery's speeches was protected, by decision of the House of Lords, in 1900, Lord Chan- cellor Halsbury said: "Although I think in these compositions {i. e. the work of the stenographer) there is literary merit and intellectual labor, yet the statute seems to me to require neither — nor originality either in thought or language . . . the right in my view is given by the statute to the first producer of a book, whether that book be wise or foolish, accurate or inac- curate, of literary merit, or of no merit whatever." The word "book" covers the great body of copy- right property, and has been many times the sub- ject of judicial construction giving the most com- prehensive meaning to the term. The English judges early held that protection "could not depend upon the form of the publication" ; " that a composition on a single sheet might well be a book within the mean- ing of the legislature"; and that "any composition, whether large or small, is a book within the mean- ing of this act." The English law of 1842 afterward specifically construed the word "book" "to mean and include every volume, part or division of a vol- ume, pamphlet, sheet of letterpress, sheet of music, map, chart or plan, separately published." The law of the United States makes no definition of the term, except by specifically including as books "composite SUBJECT-MATTER 69 and cyclopaedic works, directories, gazetteers, and other compilations " ; but our judges have agreed with the English view, Judge Thompson holding, in 1828, in Clayton v. Stone, that a "book" may be printed "only on one sheet," and that " the literary property intended to be protected by the Act is not to be determined by the size, form or shape . . . but by the subject-matter," and Judge Leavitt, in 1862, in Drury v. Ewing, that a diagram for cutting dresses, with directions, printed on a single sheet, being " the product of thought and mental toil," was a "book" within the benefit of the law. In fact, though all English and American statutes inclusions have been avowedly for "the encouragement of adjudicated learning" and "the progress of science and useful arts," the courts have construed the laws to cover in the widest sense any "useful book." The courts have indeed denied copyright protection only to works having absolutely no literary quality, such as advertisements (unless they contain original literary matter) and advertising cuts, labels, blank books, or blank forms. Even booksellers' and other trade catalogues, having descriptive notes or distinctive arrangement and combination, can be copyrighted. Compilations of existing materials, from common sources, arranged and combined in an original and useful form, receive the same protection as wholly original matter. Drone schedules English or American judicial constructions extending this principle to: (i) general miscellaneous compilations; (2) annota- tions consisting of common materials ; (3) dictionaries ; (4) books of chronology ; (5) gazetteers ; (6) itineraries, road and guide books ; (7) directories ; (8) maps and charts; (9) calendars; (10) catalogues; (11) mathemati- cal tables ; (12) a list of hounds ; (13) abstracts of titles to lands; and collections of (14) statistics, (15) statu- 70 COPYRIGHT Exclusions adjudicated Inclusions defined tory forms, (i6) recipes, and (17) designs — several of which classes are now specifically included in the new American statute. Later decisions have confirmed several of these categories and have specified also (18) trotting records; (19) racing charts; (20) news- paper reports of public speeches; (21) telegraphic codes; (22) mining reports ; (23) a tradesman's alpha- betical list of wares; (24) a list of public documents; (25) mathematical calculations; (26) legal forms; (27) an application form for membership; (28) com- pilations of railroad time-tables; (29) commercial cir- culars, protected by a Canadian decision; (30) school registers, and (31) stud book list of horses. On the other hand, the courts have declined to in- clude as proper subjects of copyright (a) methods or plans, as for compiling credit-ratings or systems, as in the case of (b) shorthand, (c) trading stamps or coupons as described in a copyrighted advertising pamphlet, or (d) of letter-file indexes; (e) a sleeve pattern chart; (f) the face of a barometer; (g) a rail- way ticket designed for punching; (h) a day's sport- ing tips; (i) blank books; or (j) blank forms, as a cricket score-card; and (k) monograms. In the new Rules and Regulations of the Copyright Office promulgated as approved by the Librarian of Congress in 1910 as Bulletin No. 15, it is said as to books : " (4, a) Books. — This term includes all printed lit- erary works (except dramatic compositions) whether published in the ordinary shape of a book or pam- phlet, or printed as a leaflet, card, or single page. The term 'book' as used in the law includes tabulated forms of information, frequently called charts; tables of figures showing the results of mathematical com- putations, such as logarithmic tables; interest, cost, and wage tables, etc., single poems, and the words of SUBJECT-MATTER 71 a song when printed and published without music; librettos; descriptions of moving pictures or specta- cles; encyclopaedias; catalogues; directories; gazet- teers and similar compilations; circulars or folders containing information in the form of reading matter other than mere lists of articles, names and addresses, and literary contributions to periodicals or news- papers." On the other hand, definitions are made negatively Exclusions that: defined " (5) The term 'book' can not be applied to — " Blank books for use in business or in carrying out any system of transacting affairs, such as record books, account books, memorandum books, diaries or journals, bank deposit and check books; forms of contracts or leases which do not contain original copy- rightable matter; coupons; forms for use in commer- cial, legal, or financial transactions, which are wholly or partly blank and whose value lies in their useful- ness and not in their merit as literary compositions. "Directions on scales, or dials, or mathematical or other instruments; puzzles; games; rebuses; labels; wrappers; formulae on boxes, bottles, and other re- ceptacles of articles for sale or meant to accompany such articles. "Advertisements or catalogues which merely set forth the names, prices, and places where articles are for sale. "Prefaces or other introductory matter to works not themselves entitled to copyright protection, such as blank books. " Calendars are not capable of registration as such, but if they contain copyrightable reading matter or pictures they may be registered either as 'books' or as ' prints ' according to the nature of the copyright- able matter." 72 COPYRIGHT The Rules also make the following negative defi- nitions : " (12) No copyright exists in toys, games, dolls, ad- vertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles." The definition of other classes of subject-matter given in the new Rules and Regulations of the Copy- right Office, including that of maps, will be found in the chapters on dramatic and musical copyright and on artistic copyright. Blank books In the case of Everson v. Young, then Librarian of Congress, Judge Cole, of the Supreme Court of the District of Columbia, in 1889, refused a mandamus against the copyright officer while admitting that " the librarian had no discretion " on the ground that mandamus "will not be used to order a vain thing to be done" and that a blank book "containing not a single English sentence" is not a subject of copy- right. "The copyright statutes," as is said in Circular Letter no. 32 of the Copyright Office, " in designating the classes of articles which may be registered in this office do not mention blank forms or blank books. The United States courts which have jurisdiction in cases arising under the copyright laws have held that blank forms or blank books or similar articles for use in themselves are not subject to copyright, and hence are not registrable in this office. A bill was introduced in Congress in 1904 proposing to extend the protection of the copyright law to vouchers, certificates, or other business forms, wholly or partly printed. But the measure was not favorably acted upon and did not become law." This exclusion does not refer to such publications as an insurance policy or a legal docu- ment, on which blank spaces are to be filled in, which SUBJECT-MATTER 73 are accepted as proper subject-matter for copyright by the Copyright Office. The copyright under certain categories above Combina- scheduled may be in the combination and arrange- ^°'^^ a'^'^ ^• ment only, or it may be also in any original material '^s®°**° ^ included with other material. Quantity is not an essential element in copyright so much as "substan- tial importance." An English court protected a pas- sage of only sixty words. In respect to advertisements and advertising mat- Advertis©- ter as such, the new American code is silent, and court n»ents decisions, mostly English, have been contradictory. In 1863 Vice-Chancellor Page Wood, in Hotten v. Arthur, " found no difficulty " in deciding that a cata- logue of old books was a subject of copyright "not- withstanding that the catalogues were for the pur- pose of advertising the plaintiffs' stock-in-trade, and were not in themselves offered for sale" ; but in 1872 Lord Romilly, in Cobbett v. Woodward, made an ab- solutely contrary decision, saying: " But at the last, it comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong in doing so, unless you lead the public to believe that you sell the articles of the person whose advertisement you copy." This last decision was definitely overruled and in 1882, in Maple V. Junior Army & Navy Stores, the English Court of Appeal, in protecting an advertising cata- logue consisting mostly of engravings of furniture, said through Justice Jessel: "The case which has done all the mischief is Cobbett v. Woodward ... I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights." In 1906, in Davis v. Benjamin, the Chan- cery Division held a sheet of advertising illustrations with headlines and prices a book. 74 COPYRIGHT TIndistincave An advertisement per se of an ordinary character, advertising ^jig courts may decline to protect, either on behalf of able^'^"**''*" the advertiser or of the publisher of the periodical in which it appears; thus possibly ordinary advertise- ments might be copied by another paper, to give an inflated impression of its advertising patronage un- less enjoined for intent to deceive. On the other hand, characteristic advertisements, as those for which de- partment stores pay large sums to advertisement writers, could doubtless be copyrighted to prevent their use by rival firms, though the advertiser would scarcely be interested in preventing the wide diffusion of his advertisement with his name by its gratuitous publication elsewhere. Some street-car advertise- ments, however, bear copyright notices. Whether the proprietor of a copyrighted periodical could prevent the use of a copyrightable advertisement not protected by specific copyright, in a rival newspaper, would be questionable, though a publisher might be granted an inj unction for the combination or arrangement of copy- rightable advertisements in his periodical. In 1892, in Lamb v. Evans, Lord Justice Lindley, in the English Court of Appeal, said: " I do not see myself the diffi- culty in the publisher's having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd." An advertisement appearing in several publications, some of them not copyrighted, could only be protected in these latter by specific copyright notice, even though covered in the copyrighted periodicals as a component part. The Copyright Office can make no clear line of de- marcation in advance as to advertisements, but it has declined in a recent instance to accept for regis- SUBJECT-MATTER 75 try recipes printed on tin and inserted in packages of flour to advertise the flour, which could scarcely be ac- cepted as a "book" or other copyrightable matter. New editions are protected under the American Newedifions code as new works (sec. 6), to the extent that they include new material ; and this is in accord with the whole trend of court decisions. In 1852 Vice-Chan- cellor Kindersley stated the doctrine that "if a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, quoad those, it is a new work." So in 1870, in Black v. Murray & Son, Lockhart's edition of Scott's "Border Min- strelsy" was protected, on Lord President Inglis' de- cision, to the full extent of the notes: "Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject of copy- right at all ; but that must always depend upon cir- cumstances. A new edition of a book may be a mere reprint of an old edition, and plainly that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, the new edition of a book may be so enlarged and im- proved as to constitute in reality a new work, and that just as clearly will entitle the author to a copy- right running from the date of the new edition." A few colorable alterations or unimportant notes may not justify a new copyright; a Scotch justice, how- ever, contended that Walter Scott's change of a single word in "Glenallan's Earl" authorized a copyright for the new edition, though another law lord differed, and the case was decided on other grounds. It is doubtful indeed whether there can be protection of a single word, a question which arose in the Belgravia case, unless having association in the public mind as a trade-mark. In any event, the copyright on a new 76 COPYRIGHT Copyright comprehen- sive Non-copy- rightable . parts ex- cepted edition, whether made by re-writing, extending, con- densing, annotating, or otherwise altering, runs inde- pendently of the term of the original or any other edi- tion, covers only the new parts, and cannot prevent the issue by others of the original or any other edition on which copyright has expired. This is made entirely clear in the new code (sec. 6) . "A book must include every part of the book; it must include every print, design, or engraving which forms part of the book, as well as the letter-press therein, which is another part of it," according to the ruling decision of Vice-Chancellor Parker, in 1852, in the English case of Bogue v. Houlston. To the same effect Drone says: "The copyright protects the whole and all the parts and contents of a book : when the book comprises a number of independent com- positions, each of the latter is as fully protected as the whole." The copyright under the new law pro- tects (sec. 3) "all the copyrightable component parts of the work copyrighted." The practice of some publishers in copyrighting a magazine and also spe- cific articles or engravings seems, therefore, a work of doubtful expediency. The new law specifically gives to the proprietor of " composite works or periodicals" (sec. 3) "all the rights in respect thereto which he would have if each part were individually copy- righted." On the other hand, copyright cannot extend to any part of a book not subject in itself to copyright, even under the old law, and the new law (sec. 3) is per- fectly plain. The general copyright is not, however, vitiated as to copyrightable portions by its seeming to cover non-copyrightable portions, as was held by Lord Kenyon, in 1801 , in Cary v. Longman. But when copyright is claimed on a work partly composed of uncopyrightable matter the courts may require the SUBJECT-MATTER 77 claimant, on interrogatories, to designate which parts are and which are not original. " If the parts cannot be separated," says Drone, "it would seem that copy- right will not vest in any of it." The new code is to the same effect. The application of these principles to the protection Book of a "new edition" which is new only with respect JUustrations to added illustrations, is very simple. It is only the new illustrations which can be copyrighted, and it is matter for question whether the endeavor to protect an edition of unaltered text by a general copyright notice which really covers only a few added illustra- tions would not be a false use of the copyright notice. A proper copyright notice on an illustrated book will, however, protect the illustrations against indi- rect as well as direct reproduction; thus in 1908 in Harper v. Kalem, Judge Lacombe in the U. S. Circuit Court in New York protected certain illustrations in "Ben Hur" against their reproduction in moving pictures. In respect to translations, the new American law Translations is specific, not only in its mention of "translations" (sec. 6), but in giving (sec. i, b) the exclusive right "to translate the copyrighted work into other lan- guages or dialects, or make any other version thereof, if it be a literary work." The early American prece- dent Wcis the case of "Uncle Tom's cabin," in 1853, in which Mrs. Stowe had copyrighted not only the original work, but a German translation which she had provided ; Justice Grier in the U. S. Circuit Court held that she could not recover against one Thomas who was issuing another German translation, since it was not "copies of her book." This case was previous to the statute permitting authors to reserve the right of translation, and the new code as above cited fully protects translations. The author of a copyrighted 78 COPYRIGHT work thus has the exclusive right to translate his work, or license its translation, into any other lan- guage, and under such a license the translator with the consent of the author would have the right to copyright his translation. Where the author em- ploys a translator for hire, the copyright in the trans- lation may be secured by the author of the original work, but under ordinary circumstances the copy- right in the translation would be secured by or on be- half of the translator. In case of contest on this point, the issue would be a question of contract, and in the absence of contract or specific assent the courts would doubtless base their decisions on the circumstances of the case so far as they could be held to imply con- tract. The inclusion of the notice of copyright of the original work on a translation, without specific copy- right of the translation itself, would be held, it seems probable, to protect the translation under the author's original copyright; but this would limit the copy- right term on the translation to the copyright term of the original work, and for this and other reasons a specific copyright on each translation is desirable, in which case the notice of copyright of the original work need not be given on the translation. Translator's In the case of the translation of a copyright work, rights the author of the original work has the right to pre- vent other translations, but the translator has no such right to prevent translation by another translator except as exclusive right to translate is conveyed or implied to him by the author of the original work. A work in the public domain, as a non-copyright work or a work on which copyright has expired, may be translated by any one and the translation copyrighted, but such translator would not have the right to pre- vent translation by another translator. In England, while the right of translation may be SUBJECT-MATTER 79 reserved under the international copyright act by English notice on the title-page, an English author could practice reserve his right of translation only by providing such translation, but the new code gives the full right. The American provisions as to translations apply Translations with especial importance to international relations, i^intema- " The original text of a book of foreign origin in a Ian- ^^ ^^^' guage or languages other than English" is copyright- able in America without manufacture here; and such a work, duly copyrighted, can only be translated into English or any other language by authority of the foreign author or his assigns, and such translation in English or any other language can be copyrighted only when manufactured in this country as provided in the act. If the original text of a foreign work is not duly copyrighted under the American law, then trans- lation is open to any one and copyright can be secured only for the particular translation copyrighted, as above stated, and this cannot prevent independent translation into the same or any other language. Thus, a German original duly copyrighted may not be translated into English, French, or any other lan- guage without authority of the copyright proprietor, nor can an English translation be made, for instance, from a French translation of the copyrighted work; but any number of translations of the copyrighted German work into English or any other language may be separately copyrighted under the American law, subject to the manufacturing clause, if duly authorized by the copyright proprietor, and each translator could only prevent the copying of his par- ticular translation or the translation of his own ver- sion into another language. A translation can be copyrighted by a translator Foreign only in case he is a citizen of a country with which translators the United States has copyright relations or is a resi- 8o COPYRIGHT dent of this country; thus a Swedish translation by a citizen of Sweden not resident in the United States could not be copyrighted unless the translator had been "employed for hire " by the author or proprietor of the original copyrighted work. If the entire copy- right of the original work had been sold by the author to a citizen of Sweden, not a resident in the United States, it would seem to follow that the latter could not copyright a translation though he might retain the right to prevent unauthorized translation under the general copyright which he had purchased. In the case of an authorized independent translation made by a Swedish citizen not resident here, the general notice of copyright of the original work might be util- ized to protect the translation, but in such case copies not manufactured in the United States could not be imported into this country; while if such authorized translation bore no copyright notice and were im- ported into the United States by the author or with his consent, it is probable that this translation, but not the original work or another translation from either, would be freed from copyright protection. Abridg- In respect to abridgments, these are specifically mentioned (sec. 6) as copyrightable works, and by inference from this clause and the provision (sec. i) giving an author the exclusive right to "make any other version," the author or proprietor of a literary work may prevent abridgment of his work. The courts had held to precedents which the best writ- ers, such as Curtis, Drone and Copinger, declare to be contradictory to the true principles of copyright law. In 1740 Lord Hardwicke, deciding against a mere reprint, "colorably shortened only," of Sir Matthew Hale's " Pleas of the Crown," declared that he would not restrain "a real and fair abridgment," and in 1774 Lord Chancellor Apsley, after consul ta- ments SUBJECT-MATTER 8i tion with Blackstone, held that an abridgment of Hawkesworth's "Voyages," involving understanding and skill, was not plagiarism or a copyright wrong, but "an allowable and meritorious work." In the leading American case of Story's "Commentaries," Story w. Holcombe, in 1847, in theU. S. Supreme Court, Justice McLean, while expressing his own opinion that "an abridgment, if fairly made, contains the principle of the original work, and this constitutes its value," added, "but a contrary doctrine has long been established in England . . . and in this coun- try the same doctrine has prevailed. I am, therefore, bound by precedent, and I yield to it in this instance, more as a principle of law than a rule of reason or justice." Similarly, in Lawrence v. Dana, in 1869, Judge Clifford, in the U. S. Circuit Court, declared that "an abridgment ought to be regarded as an infringe- ment . . . but the opposite doctrine has been too long established to be considered open to contro- versy." The language of the new code frees the courts from these precedents and settles the American law. In respect to compilations, these are protected by Compila- specific mention (sec. 6) in the new law, and also by ^^^^ the classification as books (sec. 5, a) of "composite and cyclopaedic works, directories, gazetteers, and other compilations." Compilations can be protected even if consisting solely of non-copyright material, "because of the originality, arrangement, selection, abridgment, or amplification of such simple material," as stated in the Scotch Court of Session, in the case of Lennie v. Pillans in 1843, with which later English and American decisions are in accord. Collections are copyrightable as compilations or Collections otherwise, and where the use of copyrighted poems or other copyright material is permitted, these are pro- tected by general copyright notice on the collection. 82 COPYRIGHT Tides Changed titles Permission to use a copyrighted poem, for instance, in a specified collection does not grant a license to use it in other form, though it could be used in a combina- tion of such collections. In 1896, in Gabriel v. McCabe, Judge Grosscup in the U. S. Circuit Court in Illinois held that the licensor could not prevent the use of a song licensed for a particular collection in a combina- tion of this collection in another collection or in an abridged edition of the collection, though an "abridg- ment" involving a reprint of the song by itself would have been an unfair use of the license. As to titles, which are not mentioned in the new code, both English and American court decisions are broadly and generally, though with some exceptions, to the effect that there is no copyright protection for the title of a book per se, but it may be considered an essential part of the book. Judge Shepley held, in 1872, in his elaborate discussion of the question of titles in Osgood v. Allen as to the periodicEil Our Young Folks, that "the right secured is the property in the literary composition — the product of the mind and genius of the author — and not in the name or title given to it. The title does not necessarily in- volve any literary composition; it may not be, and certainly the statute does not require that it should be, the product of the author's mind. . . . It is a mere appendage, which only identifies, and frequently does not in any way describe, the literary composition it- self. ... If there were no piracy of the copyrighted book there would be no remedy . . . for the use of a title which could not be copyrighted independently of the book." Judge Lacombe accepted this view in his decision of the "Trilby" case, cited beyond. Conversely, the publication of a copyrighted work under a changed title, with the original notice of copy- right, would probably not invalidate the copyright. SUBJECT-MATTER 83 though it would make identification more difficult and prevent the copyright certificate being prima facie proof; and change of title is a practice altogether reprehensible. A new copyright of the same book changed only in title, with a new copyright notice of later date, could scarcely be construed as a new edition and in the absence of the original copyright notice the copyright might thus be abandoned or forfeited and the work be dedicated to the public. General titles cannot in any way be protected. General The publishers of the " Bibliographie Universelle," *'*^®^ in France, the "Post-Office Directory," in England, and of "Irving's Works," in America, were all de- feated in attempts to prevent the use of those titles. Titles are rather to be considered as trade-marks. Titles as which may be registered in the United States under trade-marks the Trade-Mark acts of 1905-6, and protected by the statutory penalties, or may be protected on general principles of equity. This doctrine was early upheld by the English courts, especially in regard to periodi- cals, as in the titles of Bell's Life and the London Journal, and again came before the courts in the im- portant case of Weldon v. Dicks, as to the specific title of the novel "Trial and triumph," in which case, in 1878, Vice-Chancellor Malins enjoined quite another book under the same title, though the title was chosen in ignorance of the first book and in entire good faith. So, also, as to the title "Splendid misery," used by Miss Braddon in 1879, Sir James Bacon, in the Chancery suit of Dicks v. Yates, in 1881, was in- clined to support the claim of C. H. Hazelwood, who had used the title in 1874, until it was shown that a forgotten novelist named Purr had used it in 1801, so that it had become, in a measure, common pro- perty. In the several American "Chatterbox" cases, 84 COPYRIGHT "Chatter- box Other title decisions Judge Wheeler's early decision restraining the use of this "name or word, or any name or word substan- tially identical therewith," in or upon any juveniles of the general character of the English book of that name, was followed by Judge Shipman, in 1887, in Estes V. Worthington, in the U. S. Circuit Court in New York, who also held that the word "Chatter- box" had laecome "a well-known trade-mark desig- nating a well-known series," published in a distinctive style and enjoined the rival publication, simulating the external style, but of different contents. These decisions previous to 1891, resting on principles of trade-mark and not of copyright, indirectly assured a measure of international copyright. In 1888 the publishers of Life and of "The good things of Life" obtained an injunction from the N. Y. Supreme Court, in Mitchell & Miller v. White & Allen, to restrain the publication of "The spice of life," as seemingly a continuation or counterpart of the authorized collection of extracts from that periodi- cal. In 1904, in Gannet v. Rupert, Judge Coxe in the U. S. Circuit Court of Appeals in New York, on suit of the publishers of Comfort, restrained the use of the title Home Comfort on a rival periodical "not as a case of unfair competition " but as "founded on a techni- cal common law trade-mark"; and characterized the name as " a badge of origin and genuineness. It is as much a part of the proprietor's property as his count- ing room or printing press. A rival publisher has no more right to appropriate the name of its owner," — despite the defence that Comfort is " a standard English word not fanciful or manufactured." This defence had precedent in the doubt expressed by Lord Cairns in 1867 in the Belgravia case, cited beyond, as to copy- right protection of a single word, and in the decision of Judge Curtis in Isaacs v. Daly, in the N. Y. Superior SUBJECT-MATTER 85 Court in 1874, as to the drama "Charity," that "the use of the word 'Charity' as a designation for any work of art or literature cannot ordinarily be mono- polized by any one person"; but under trade-mark law a single word associated by registry or in the public mind with a well-known product, may undoubtedly be protected as against misleading use of the word other- wise. The courts will go even farther in preventing the use of a title by another person with intent to de- ceive or to utilize the reputation of another work or author, as a fraud upon the public, or as unfair com- petition, without reference specifically to trade-mark principles. Thus Judge Newburger of the N. Y. Su- preme Court, in 1910, in Eliot and Collier v. Jones and the Circle Publishing Company, restrained the issue under the title "Dr. Eliot's five-foot shelf" of books by the defendants of a set of books selected by and issued under the authority of President Eliot of Harvard, under arrangement with the co-plaintiff. The English rulings are to the like effect, that while a title has no copyright protection except as part of a book, the use of a title to attract purchasers on the supposition that they are getting another book pre- viously known by that title is a fraud punishable at common law. Further citations of cases on these points are given in the chapter on infringement. There can be no claim to protection for the title of Projected an unpublished book, as a trade-mark or otherwise, ^^^^ just as there can be no copyright in a projected book. This question was elaborately discussed in the lead- ing English case of Maxwell v. Hogg, in 1867, in rela- tion to the magazine Belgravia, when the rule was laid down that no matter what expenditure had been made or advertising done, a title was not protectable previous to its association with a work actually be- fore the public. Judge Shepley, in 1872, pointed out 86 COPYRIGHT that "there is no such thing as property in a trade- mark as an abstract name," for a trade-mark simply shows that certain goods "were manufactured by a certain person," Nor can an abandoned title, in the case of a periodical, be held against a person starting a new periodical of that name, providing it does not purport to be a continuation of the old, according to a French case quoted by English authorities. Projected There can be no statutory copyright in a book or works not other work projected and not yet prepared, despite a copyrighta e ^^^ general notion that under the old law a pro- jected book could be protected by registering a title and depositing a title-page of an unwritten or unpub- lished book. There is nothing in copyright law cor- responding to the caveat in patent law. This is not in conflict with the protection of an unpublished work at common law or in equity referred to in the new American code (sec. 2) or the provision in the new law (sec. 11) permitting the registration of "a lecture or similar production or a dramatic or musical com- position" or a work of art, before publication, with the deposit of a complete copy or identifying print. Immoral There can be no copyright in an immoral book, and works Lord Eldon, in Sou they v. Sherwood, carried this doc- trine so far as to deny the common law right of an author in a non-innocent manuscript, because there could be no right to hold what there was no right to sell. His opinion, resulting in the wide sale of a book which the author desired to suppress, has been se- verely criticised by later authorities. In the Ameri- can case of Broder v. Zeno Mauvais Music Co., Judge Morrow, in the U. S. Circuit Court in California, in 1898, held that as a song which the plaintiff sought to protect contained indecent words, it was not entitled to protection under the copyright law. There can be no copyright in blasphemous, seditious, or libelous SUBJECT-MATTER 87 books; but though this rule was very strictly enforced by English judges a century ago, the later courts hesi- tate to rule strictly on this point, lest the rule be per- verted to sectarianism or despotism. There can be no copyright in books involving fraud, as those which spuriously obtain salable value by being represented to be the work of writers who did not write them, or to contain matter which they do not contain ; but this rule does not extend to books under assumed names or innocently pretending to be what they are not, as when Horace Walpole's "Castle of Otranto" was put forward as a translation from the Italian. In addition to the inclusion of " composite works," Periodicals the new American law specifically covers (sec. 5, b) "periodicals, including newspapers," and by other provisions of the law above cited, this covers "all copyrightable component parts." It is further pro- vided (sec. 3) that "the copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act." While the American code does not specifically provide as to the separate rights of au- thors in articles in periodicals or composite works, which must therefore be a matter of contract, or of practice or precedent implying contract, provision for separate copyright is implied in a clause (sec. 12) requiring the deposit of only one copy instead of two in the case of "a contribution to a periodical, for which contribution special registration is requested" — although the specific article is fully protected, as indicated above, by the general copyright. The new Rules and Regulations of the Copyright Definition of Office define periodicals as follows: periodicals " (6) This term includes newspapers, magazines, re- views, and serial publications appearing oftener than 88 COPYRIGHT Periodicals under manu- facturing clause Periodicals copyright- able by numbers once a year; bulletins or proceedings of societies, etc., which appear regularly at intervals of less than a year; and, generally, periodical publications which would be registered as second class matter at the post office." Periodicals, as well as books, are subject to the manufacturing clause (sec. 15), but affidavit is not re- quired, and the importation of "a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by author- ity of the copyright proprietor," is not prohibited (sec. 31, b), "unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization" — but these and other conditions are treated in later chapters. The law provides (sec. 19) in the case of a periodi- cal, that the notice of copyright may be " either upon the title-page or upon the first page of text of each separate number or under the title heading," "pro- vided that one notice of copyright in each volume or in each number of a newspaper or periodical pub- lished shall suffice." This implies that each issue of a periodical must be separately copyrighted as though a separate work, although the title may be registered as a trade-mark and possibly protected in this way. A daily newspaper may thus be copyrighted day by day at a cost of $365 per year, so as to protect all its original material of substantial literary value. This was done in fact under the American law previous to 1909, though periodicals were not specifically men- tioned ; a daily price-list of the New York Cotton Ex- change was so entered day by day, but the question of maintaining such a copyright under the old law seems never to have been tested in the courts, and New York dailies copyrighted their Sunday cable letters separately. In respect to news, there is no provision in the new SUBJECT-MATTER 89 code. A bill to protect news for twenty-four hours News was at one time before Congress, but was never passed. There is, therefore, no copyright protection for news as such, but the general copyright of the newspaper or a special copyright may protect the form of a dispatch, letter, or article containing news. Thus the New York Herald copyrighted without question Dr. Cook's Arctic dispatches, and the ques- tion as to the copyright by the New York Times of Commander Peary's dispatches describing his dash for the pole hinged solely on the question of owner- ship or authority to copyright, as set forth in a later chapter. But any such copyright could not prevent publication by other newspapers of the news that Cook and Peary claimed to have reached the North Pole, at stated dates and under stated circumstances, though their own form of statement of the facts could not lawfully be copied except within "fair use." In 1892 Justice North in the English Court of Chancery, in Walter v. Steinkopff , said that " although it is sometimes said that there is no copyright in news, there could be copyright in the particular form of language or mode of expression by which informa- tion is conveyed." The English courts went further in two actions brought by the Exchange Telegraph Co., 1895-97, ill the first of which Gregory & Co. were restrained from using information furnished to sub- scribers first as unpublished matter before publica- tion, second after publication because of copyright on the publication, and third as " unfair competition." In 1902, in Nat. Tel. News Co. v. West. Union Tel. Co., the U. S. Circuit Court of Appeals protected news on ticker tapes, and in 1910, in Press Assoc, v. Reporting Agency, the English Chancery Division protected election reports on the last-named ground alone. 90 COPYRIGHT British periodicals Oral works The statutes of Great Britain have hitherto pro- vided that a work published in parts or a periodical may be fully protected by copyright entry of the first part; the new code covers newspapers and periodicals generally as collective works. When the London Times' memoir of Beaconsfield was reprinted as a penny pamphlet, the Times brought suit as a matter of common law right, but the judge held that a news- paper was copyrightable under the statute, and there- fore that a common law suit could not hold. The American law now specifically protects oral works by including in the classification (sec. 5, c) "lectures, sermons, addresses, prepared for oral de- livery, " and by assuring (sec. I, c) exclusive right "to deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production." The phrase "simi- lar production" and the spirit of the statute suggest that, though the manuscript of a book cannot be copyrighted prior to publication, a "reading" from an unpublished book, as a chapter, scene, or poem, might be registered and protected for oral delivery before publication; and the Copyright Office will make such registry on such application. The former law made no specific provision, but the courts seemed disposed to protect a lecturer on the common law ground that the lecture read is not published by reading, and can be controlled as a manuscript. In the application of common law doctrine to extem- poraneous or other oral deliveries, the question of implied contract between the speaker and his audi- tors enters, and the trend of court decisions is that a hearer who has purchased or obtained a ticket, may make notes for his own use but may not publish them for profit. In the leading English case of Abernethy V. Hutchinson, in 1825, Lord Chancellor Eldon pro- SUBJECT-MATTER 91 tected Dr. Abernethy against the publication of notes of unwritten medical lectures, evidently obtained through a student hearer. Newspapers have, however, in practice freely re- Newspaper published lectures, and probably even under the reports present law the courts would permit, unless report was specifically and entirely forbidden by the speaker, a reasonable report but not a verbatim reproduction of the address, as within the bounds of "fair use." The publication of an unauthorized report by one newspaper would not justify another newspaper in copying the report without consent of the copyright proprietor on the ground of publication, for such unauthorized publication cannot deprive the copy- right proprietor of his rights. If a speaker delivers an address, extemporaneously or even from written manuscript without registering the address as an unpublished work or taking other precautions, it is probable that the courts would protect his rights at common law; but it would be hazardous not to take advantage of the statute. Lectures have hitherto been protected in England Lectures in in case the lecturer gave notice of reservation in writ- England ing two days in advance to two justices at the place of reading, but this complicated proviso caused speak- ers to rely rather on the common law doctrine that oral delivery is not publication. The new British code specifically provides that delivery is not publication, but permits newspaper report unless the speaker prohibits such report by notice posted near the main entrance and except during public worship near the speaker's position; "newspaper summary" within "fair dealing" is expressly permitted. Letters are not specified either in English or Amer- Letters ican statutes under copyright law. A private letter has been held an unpublished manuscript, the right 92 COPYRIGHT Letters to publish or copyright remaining with the author while living, though the material letter, its paper and ink, has passed to the receiver. Thus in 1741 Pope prevented Curl, an English bookseller, from repub- lishing his letters to Swift, and in 1774, in Thompson V. Stanhope, Lord Chesterfield prevented his son's widow from publishing letters which he had made a gift to her. Letters, however, are copyrightable by themselves or as part of a book; and the writer may protect a letter against unauthorized publication by himself publishing and copyrighting it. The U. S. Supreme Court in 1841, in Folsom v. Marsh, enjoined the republication of letters of Washington, pub- lished by authority in Sparks's "Life of Washington," through Justice Story, who said: "The author of any letter or letters, and his representatives, whether they are literary letters or letters of business, possess the sole and exclusive copyright therein ; and no per- son, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same." But as manuscripts posthumously pub- lished, the copyright in letters may belong to the receiver or his assigns ; and in Macmillan v. Dent, in 1906, the English Court of Appeal held, where the owners of letters of Charles Lamb had sold the copy- right to certain publishers, these could not be repub- lished by another who had later bought the material letters even under the authorization of the repre- sentative of Lamb's heirs. In Philip v. Pennell, Whistler's executrix was denied an injunction to pre- vent the use of biographical information obtained from the receivers of letters. But obiter dicta indi- cated that the courts may grant to the writer's repre- sentatives an injunction against publication or mis- use. The laws of some countries specifically permit the publication of letters in the interest of justice. SUBJECT-MATTER 93 Unless the letter is of the nature of privileged corre- spondence, the courts can probably require the pro- duction of a letter in court, and in fact do subpoena telegraph companies to produce the originals or trans- mittal records of telegrams in court, and thus make them quasi public property. The sale of a manuscript letter cannot authorize a vendee to publish it without consent of the writer, and the receiver of a letter is perhaps bound to keep a letter private or destroy it, if so required by the writer, but this is a right difficult of enforcement if not doubtful in esse. The receiver of a letter has probably a right to destroy it at his will, unless the writer has required its return to him. The subject-matter of copyright in respect to musi- cal and dramatic compositions and works of art, is treated specifically In later chapters on dramatic and musical copyright and on artistic copyright. Designs for use in manufacture are, in the United Designs States, subjects of patent and not copyright. It is patentable provided by the act of May 9, 1902, that "any new, original, and ornamental design for an article of manufacture" may be patented, and this classifica- tion inferentially excludes such designs from copy- right. This generalized description of design patents replaced, at the suggestion of the Commissioner of Patents, the specific descriptions in the design pa- tents act of December I, 1873, and adopted instead the more comprehensive phraseology of the act of February 4, 1887, for the punishment of infringement of design patents. In like manner the new British code excludes designs registrable under the patents and designs act, 1907, "except designs which, though capable of being so registered, are not used or in- tended to be used as models or patterns to be multi- plied by any industrial process." 94 COPYRIGHT Foreign "The foreign copyright legislation," as is stated in practice Copyright Office Bulletin, No. 9 of 1905, "instead of specifically naming the productions which are subject- matter of copyright, generally uses some inclusive expression, such as 'all writings,' 'every kind of lit- erary work,' 'works of literature,' 'literary and scien- tific works,' 'every production of literature and sci- ence,' and even such inclusive terms as 'every work of the intellect.'" Spain adds the inclusive phrase "produced or published by . . . any kind of im- pression or reproduction known now or subsequently invented." Great Britain, most of her colonies, and some other countries have set forth specific categories. But the new British measure uses the general phrase " every original literary dramatic musical and artis- tic work" — this replacing the several categories in the several previous laws. In a few countries manu- scripts, personal letters and telegraphic messages, mostly in newspaper use, and in Ecuador, titles of periodicals, are specifically scheduled as subjects of copyright. International The Berlin convention uses the general expression definition "literary and artistic works," which it defines as in- cluding "all productions in the literary, scientific or artistic domain, whatever the mode or form of repro- duction," then specifying in detail categories of liter- ary, dramatic, musical and other artistic works, as set forth in the chapter on international conventions and arrangements. VII OWNERSHIP OF COPYRIGHT: WHO MAY SECURE COPYRIGHT The American code of 1909 names (sec. 8) "the Persons author or proprietor of any work made the subject of M^ied copyright by this Act, or his executors, administrators, or assigns" as the persons in whom the copyright may lodge. It also provides specifically (sec. 62) that "the word 'author' shall include an employer in the case of works made for hire." The American law formerly named "the author, inventor, designer, or proprietor of any work, and the executors, administrators, or assigns of any such per- son" as the persons in whom copyright may lodge. The Librarian of Congress accordingly issued copy- right certificates for books as to an "author " or " pro- prietor" only, assuming usually that an editor was the "author" and a publisher the "proprietor," and never going behind the claim set forth in the applica- tion. Under the new law the applicant is designated only as the "claimant," and no such distinction is made, except that the Copyright Office has an index card for proprietor, as well as author, when another than the author makes the application. The author is the person primarily entitled to copy- The author right. He may sell or otherwise transfer his produc- primarily tion before it is copyrighted, in which case the new proprietor obtains all the common law rights of pro- perty, both in the manuscript and its publication, including the right to copyright. This common law right, including the right to copyright, may extend, Drone argues, to the finder of an unpublished manu- 96 COPYRIGHT Claimant's right to register script, provided no one successfully disputes his ownership of his find, if the manuscript be copyright- able; but there are no decisions on this point. If a copyright is taken out by another person (as the pub- lisher of the book), it is done impliedly in trust for the author, as is a usual custom among American publishers. The proprietor is defined to mean "the representative of an artist or author who might him- self obtain copyright." The Register of Copyrights is not a quasi judicial officer, as is the Commissioner of Patents, and he does not undertake to make decision as to the right of the claimant, this question being one for deter- mination by the courts in specific instances. In cases of doubt, however, he may in practice, for the sake of convenience and of clearness of record, call the attention of the claiimant to such doubt and invite explanation, but he probably would not be justified in refusing to register the application for a claimant who asserted his right to such entry. A former Li- brarian of Congress, then directly the copyright offi- cer, used to say that he would enter copyright for any one on the Bible in King James' version if formal application were made to him, thus emphasizing the statement that he had no judicial authority. In the case of Everson v. John Russell Young, then Li- brarian of Congress, Judge Cole in 1889, while refus- ing the mandamus asked for, asserted incidentally that " the Librarian had no discretion." Where a sec- ond application is made for the entry of the same copyrightable work by a second party, the copyright officer would not decline to register the second appli- cation, if the claimant insisted on his right, after the fact of the first registration had been brought to the second claimant's notice, and the question of owner- ship would have to be brought before the courts. It OWNERSHIP 97 is only in the case of works evidently not copyright- able, or in the case of claimants not entitled to apply for registration, as a citizen of a foreign country with which the United States has no copyright relations, or in other cases evidently beyond the scope of the law, that the copyright officer would exercise discretion and decline to make the record. The provision of the new code specifically includ- Employer i ing as author (sec. 62) "an employer in the case of author works made for hire" is new in American law, but it adopts previous decisions of the courts. It does not, however, adjudicate the application or specific defini- tion of this phrase, which remains in large measure a question of contract. Earlier copyright decisions were to the effect that the authorship may inhere in the employer, if the design of the work is so far his as to make him the virtual creator and the actual writer a deputy merely; but that he is not an author who "merely suggests the subject, and has no share in the design or execution of the work." But under the new law, the case turns upon the meaning of "employ- ment," which would be clear in the case of writers paid wages or salary for doing the work on an ency- clopaedia, but might not be clear in the case of an author paid in advance or on account by a publisher, though working on a general plan suggested or in- vented by the publisher. In such cases the proprie- tary right, including the right to secure copyright, depends upon the contract, implied or express, and the courts will decide this according to the law of contracts. In Boucicault v. Fox, in 1862, Judge Shipman, in the U. S. Circuit Court, held, as to the play "The octoroon," that "a man's in- tellectual productions are peculiarly his own, and he will not be deemed to have parted with his right and transferred it to his employer until a valid agree- 98 COPYRIGHT Implied ownership Protection outside of copyright ment to that effect is adduced." It is safer in all cases, for the protection of the employer and for the sake of clear relations with the actual person who does the work, that there should be a definite con- tract. When a salaried law reporter had been employed by the State of New York under a law that the copy- right of the Reports should vest in the State, Judge Nelson for the Circuit Court of Appeals, in 1852, in Little V. Gould, held as valid an entry by the Secre- tary of State, "in trust for the State of New York," though no formal assignment had been made. In the absence of specific contract, or even in some cases of specific contract, many cross-questions may arise which the law does not and cannot determine in advance. In the case of a book " with illustrations by John Leech," where Leech retained the cop5n-ight of the designs, though the publishers owned the wood on which he had drawn them, an English court held to a distinction between the copyright and the right to the material, and directed the publishers to waive their lesser right and surrender the blocks, in view of the circumstances of the contract. Most of the cases arising as to ownership are, in fact, issues outside of copyright law, as when in 1883 in Clemens v. Belford, in the U. S. Circuit Court in Illinois, Samuel L. Clemens vainly sought to restrain the use of his pen-name, " Mark Twain," in a col- lection of his uncopyrighted papers, Judge Blodgett holding that whoever has a right to publish has a right to state authorship, though an author can re- strain the publication over his name of things he did not write. The same doctrine was upheld in 1910 in Ellis V. Hurst, where a publisher had printed with the real name of the author some non-copyright books which Edward S. Ellis had put forth under a OWNERSHIP 99 pseudonym. Judge Greenbaum, in the N. Y. Supreme Court, held that the law insuring right of privacy does not prevent the use of a writer's name on a book undoubtedly of his writing. In 1908 Mr. Clemens sought in vain to prevent the use by others of his pseudonym, " Mark Twain," by incorporating a company with this name, planning thus to secure the exclusive use of the name for this corporation and practically obtaining a continuing trade-mark protection for it under this device. But that an author may protect a nom de plume of settled use independent of copyright or trade-mark was held in Landa v. Greenberg in 1908, in Chancery Division. When, as in the case of a cyclopaedia, many per- Work in sons are employed at the offices of an employer, using cyclopadias his materials and facilities, and especially if on salary, the courts would undoubtedly uphold his full pro- prietorship in their work. Where outside persons contribute special articles, the presumption would probably be that the ownership of the copyright, for that special publication, vested in the employer, but that neither he, without the author's consent, nor the author, without his consent, could publish the article in other competing shape. In Bullen v. Aflalo, the House of Lords, in 1903, reversing the lower courts, protected the proprietors of an encyclopaedia who had purchased articles from authors, against reprints of the material elsewhere, by the authors themselves, on the ground "that the right to obtain copyright was intended to pass to the publisher, otherwise he would get nothing from his bargain ; and unless the publisher and proprietor of the encyclopaedia stood in the shoes of the actual writer and was the proprietor of the copyright, he would have nothing for his money, be- cause the articles might be published by others and he would have no remedy, not having the copyright." 100 COPYRIGHT Association of author's name Added material and alteration Separate registra- tion of con- tributions The right of a contributor to have his name asso- ciated with his work in the case of an encyclopaedia, at issue in Basil Jones v. American Law Book Co., where the individual writer's name was replaced by that of a distinguished jurist, though upheld in 1905 by Judge McCall in the N. Y. Supreme Court, was denied in the reversal of this decision in 1908 by the Appellate Division through Judge Houghton. Where a publisher had affixed additional material to a copyrighted book, the author was denied relief in Holloway v. Bradley, in 1886, by Judge Butler in the U. S. Circuit Court; but this decision would not hold where the added material was so placed as to give the false impression that it was written by the author of the copyrighted work. Thus in 1910, in Gilbert v. Workman, Sir W. S. Gilbert obtained an order in the Chancery Division through Justice Neville against the interpolation of a song into his copyrighted opera without his consent. This would hold true to like extent in respect to alterations, which might be permissible when in the nature of proof-reading correction or editorial revi- sion, but contrary to equity when they pervert, ob- scure, or otherwise misrepresent the author. In respect to composite works, the new American code indicates (sec. 23) that there may be separate registration of contributions, inferentially in the per- son of "an individual author," as distinguished from the general entry for copyright of the composite work. This doubtless refers to the practice, for instance, of the entry in his own name of his specific work, by a novelist or other contributor to a periodical, in addi- tion to the general entry of the number of the periodi- cal of which it is a copyrightable component part. The only direct effect is to give to the specific author prima facie evidence of ownership in his specific con- MAY 20 1912 OWNERSHIP LAW^ LIBRARY. tribution, as distinguished from the right of the pro- prietor of the general copyright, and in some respects the clause is ambiguous and perhaps misleading, mak- ing it the more desirable that the relation of the in- dividual author should be defined by contract. It is not really in conflict, however, with the principle that there cannot be two copyrights in the same work, as the evident distinction implied is that the proprietor of the general copyright holds the right for publica- tion in the periodical and that the specific author reserves the right of publication in other form, which distinction is sufficiently provided for as a matter of contract and does not depend upon specific entry of the contribution. The wisest course may be for the proprietor of the periodical or other composite work to reassign his interest in the specific contribution, as was done by the proprietors of the Smart Set as adjudicated in the case of Dam v. Kirke La Shelle Co., cited in the chapter on dramatic and musical copyright, and thus remove possible doubt as to ownership. There is no specific reference in the new American Anonymous code as to anonymous or pseudonymous works, ex- works cept as to duration of copyright. In practice, the Copyright Office assumes that the applicant for the entry of an anonymous or pseudonymous work is the qualified and legal author or proprietor, and any disputed question of fact would ultimately be de- cided by tlae courts. There may be joint authorship in a work of com- Joint au- mon design, in which case the joint authors will be- thorship come owners in common of the undivided property; but mere alterations or work on specific parts could not justify claim to more than such alterations or parts. The copyright would naturally be entered in both names, but as one copyright; it was held in 102 COPYRIGHT Corporate bodies Posthumous works ThePeaiy 1902, in MifHin v. Dutton, by the U. S. Supreme Court, that "there cannot be duplicate copyrights of the same book in different names." If one of the joint authors and not the other should apply for entry, the Copyright Office would in practice probably record the copyright claim on the presumption that the author was acting in the common interest ; but if two joint authors applied simultaneously and severally, the question of ownership would have to be settled by the courts. A corporate body, even though not incorporated under statute, is considered an author in the case of its own proceedings or similar publications, and in 1903 Justice Holmes rendered the decision of the U. S. Supreme Court in the case of Bleistein v. Don- aldson Lith. Co., though the court was divided on the subject, that a copyright taken in the name of the Courier Lithographing Company, which was only the trade name of the complainant, was valid. In the case of posthumous works, the person en- titled to copyright would be the executor, adminis- trator, or the heirs of the author, and the owner of an unpublished manuscript could probably enter and maintain copyright in the absence of other legal claimant. The first important case under the new American code, in September, 1909, dealt with the question who may obtain copyright. On the report of the discov- ery of the North Pole, the New York Herald procured from Dr. Cook his account of his journey and copy- righted it on its publication in the Herald, — which copyright does not seem to have been questioned. Im- mediately thereafter came Commander Peary's ac- count of his polar journey, for which the New York Times had contracted with him before his departure in the previous year. The Peary report was pub- OWNERSHIP 103 lished simultaneously by the New York Times and the London Times, but the difference of five hours enabled the correspondents of the New York Sun and World to cable the report to their respective papers in time for publication at the same hour in America as in the New York Times. Anticipating this course, the New York Times had taken the pre- caution to publish the report in pamphlet or " book" form some hours before newspaper publication, and to copyright this as a book. When an injunction was asked in the U. S. Circuit Court from Judge Hand, that judge granted the injunction, but on the required production of the contract in court, dissolved his injunction on the ground that the contract between Peary and the New York Times gave to the Times only the right to news publication and specifically reserved to Peary magazine and book rights. He inferred thus that the Times had no right to copy- right the news report as a book, and was not the agent of the author for that purpose. To the contrary, Opposing Judge Grosscup in Chicago, in an exactly similar case decisions against the Chicago Inter-Ocean and other Chicago papers, and with the contract before him, maintained the copyright by the Times. The two contradictory decisions have not so far been adjudicated in the higher courts. It will be observed that the question is not strictly one of copyright, but of contract, and that it is not denied that the news report, in the lit- erary form given it by the author, was a proper sub- ject of copyright, though the news of the discovery of the North Pole might not be copyrightable. Judge Hand perhaps erred in assuming that there could be separate copyright for news, magazine, or book pub- lication, overlooking the fact that Peary had con- ferred on the Times authority to protect the report sent to it by cable, while reserving to himself rights I04 COPYRIGHT in magazine or book publication of his material, whether in the same or different form. Renewal In the renewal of copyright, the new American rights code follows the previous law in differentiating the persons entitled to renew the copyright. It provides (sec. 23) that in the case of a posthumous composite or corporate work originally copyrighted by the pro- prietor thereof or a work made for hire, the proprietor of such copyright shall be entitled to a renewal ; but in other cases, including a separately registered con- tribution by an individual to a composite work, the author or the widow, widower or children, or, if such be not living, the author's executors or next of kin shall be entitled to a renewal. This means that there can be no renewal by an assignee proprietor, and that in the absence of natural heirs of a personal author, no person is entitled to a renewal of his copyright. The new law has been specifically construed to this effect by the Attorney-General in his opinion of Feb- ruary 3, 1910. It should be noted that the word "ad- ministrators," included in the provision as to original application (sec. 8), is omitted from the provision as to renewal (sec. 23) including renewal of existing copyrights (sec. 24), indicating that while an author may make bequest of copyright for the renewal term, which right may then be claimed by his executor, the right to renew lapses when he makes no will and has no next of kin to inherit the right of renewal. Assigments Specific provision as to the method and record of the transfer of copyrights by assignments are con- tained in the following provisions of the code of 1909: " (Sec. 42.) That copyright secured under this or previous Acts of the United States may be assigned, granted, or mortgaged by an instrument in writing signed by the proprietor of the copyright, or may be bequeathed by will. OWNERSHIP 105 " (Sec. 43.) That every assignment of copyright executed in a foreign country shall be acknowledged by the assignor before a consular officer or secretary of legation of the United States authorized by law to administer oaths or perform notarial acts. The certificate of such acknowledgment under the hand and official seal of such consular officer or secretary of legation shall be prima facie evidence of the execu- tion of the instrument. " (Sec. 44.) That every assignment of copyright Assignment shall be recorded in the copyright office within three ^^'^^^ calendar months after its execution in the United States or within six calendar months after its execu- tion without the limits of the United States, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, whose Eissignment has been duly re- corded. " (Sec. 45.) That the register of copyrights shall, upon payment of the prescribed fee, record such assignment, and shall return it to the sender with a certificate of record attached under seal of the copy- right office, and upon the payment of the fee prescribed by this Act he shall furnish to any person requesting the same a certified copy thereof under the said seal. " (Sec. 46). That when an assignment of the copy- Substitution right in a specified book or other work has been re- °^ ''*™* corded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act." It should be noted that this last provision, author- izing the substitution of a name, is applicable only to the general copyright in a work, and not to a divided right; otherwise there would seem to be more than one copyright in the same work. The Copyright Office will, however, record assignments of specific I06 COPYRIGHT or divided rights without reference to this power of substitution. Further assignment from one assignee to another is permissible to any extent, and in cases of repeated assignment of a general copyright there may be further substitution of names. Witnesses There is no specific requirement as to the witness- ing of assignments, which would therefore follow the usual principles of law. This was, however, an im- portant question in England, and under the early English statute the courts held that assignments must be in writing, attested by two witnesses; the later statute of Victoria modified the language, and the new English code requires assignment in writing signed by the owner or his authorized agent, without specifying witnesses. But assignment of common-law rights (as in an unpublished manuscript) may doubt- less be by word of mouth. "Outrights" Where an author sells his entire rights "outright," and renewal he cannot transfer the right to take out renewal, but he may directly or by inference bind himself to apply for such renewal in the interest of the new proprietor. Under such a contract, this proprietor could probably require him by equity proceedings to take this step. Such a contract, however, would not bar the author from his right to renewal under the copyright law and through the Copyright Office, although it is possible that the courts might enjoin an author from renewal or assignment of a renewed copyright in the interest of another than the original assignee. It should be noted that in the case of composite, corporate or like imper- sonal works, copyrighted under the new code, renewal is not restricted to the original proprietor, though by analogy this should be the practice; but that in the case of renewal of copyrights existing before July i, 1909, and in extension of the present renewal terms, the use of the phrase "such proprietor," referring OWNERSHIP 107 back to "the original proprietor," does make such limitation. Where the copyright proprietor of record is not the Proof of author, the courts may require him to prove his proprietor- rights, in default of which the copyright certificate '" will be adjudged null and void, as was done in 1909 by the Circuit Court of Appeals both in Bosselman v. Richardson, where a son copyrighted paintings by his father and failed to prove that they had not be- fore been published, and in Saake v. Lederer, where the court canceled the copyright of the play "Old Heidelberg" because Lederer had obtained from the German author only a license to perform and not a right to copyright. As to copyright by others than citizens of the coun- Foreign try, the law of 1909 provides (sec. 8) "that the copy- citizens right secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only: " (a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or ' ' (b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citi- zens, or copyright protection substantially equal to the protection secured to such foreign author under this Act, or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto. "The existence of the reciprocal conditions afore- said shall be determined by the President of the io8 COPYRIGHT United States, by proclamation made from time to time, as the purposes of this Act may require." Earlier The Revised Statutes formerly extended copyright provisions to "a citizen of the United States or resident therein or his widow or children," and the act of 1891 pro- vided for a quasi international copyright on a basis similar to that in subsection (b), cited above, of the law of 1909, i. e. on a basis of reciprocity. The new American code practically adopts the features both of the Revised Statutes and the act of 1 891, though with verbal and substantial differences. The word "domiciled" is new in the law and has yet to be construed in a copyright case, but it is presumably the equivalent of "resident." The new Rules and Regulations of the Copyright Office use the phrase " (2) a resident alien domiciled in the United States at the time of the first publication of his work." Residence A resident, under the American decisions, is a per- son who intends to reside permanently in this coun- try. It is decided by the intention of the resident. A person who is residing here without intention of per- manence probably cannot maintain copyright under this clause. For English copyright, on the contrary, a person temporarily residing in His Majesty's do- minions has been considered a resident. " The United States" would doubtless be construed to include territories and dependencies, as specific jurisdiction is given (sec. 34) to stated courts in Alaska, Hawaii, the Philippine Islands and Porto Rico, in addition to the general decisions of the U. S. Supreme Court. Under the statute of Anne the English courts dif- fered persistently on the question whether a non-resi- dent foreigner could obtain British copyright by first publication within the British dominions, until in 1854, in the ultimate case of Jefferys v. Boosey, the House of Lords, after consulting the judges, of whom OWNERSHIP 109 six denied and four sustained the contention, decided unanimously that a non-resident foreigner could not acquire copyright by first publication. Under the law of 1842, the question was again raised, in view of the variation of the language from that in the statute of Anne; in 1868, in the case of Routledge v. Low, in which an American author claimed copyright for his work first published in London while he resided for a few days in Canada, the House of Lords held that a foreigner might thus obtain copyright by temporary residence within the British dominions and indicated, but did not decide, that a foreigner could obtain copy- right by first publication, even if not temporarily resi- dent within the British dominions. After the passage of the "international copyright amendment" in 189 1, the American law authorities consulted with the law officers of the Crown, who rendered a decision that foreign authors were entitled to British copyright on the sole condition of first publication, and on this de- cision the President based his proclamation of recipro- cal relations with Great Britain. The new British measure retains first publication within the included parts of the Empire as the essential condition, except in unpublished works, unless otherwise provided under international copyright, though the Crown may withdraw this privilege from foreigners whose coun- tries do not assure reciprocity. The provision of subsection (a) is chiefly useful, it intending would seem, to protect intending citizens who have citizens applied for naturalization papers and incidentally renounced their previous allegiance to another power and thus put themselves beyond the pale of the inter- national conventions. "First publication" is not limited in terms to the Time United States, and the "alien author or proprietor," p^^^f^tion provided he makes application under this clause and no COPYRIGHT is not a citizen of a country with which the United States has a copyright convention, must therefore be domiciled here, it would seem, at the time of first publication, in whatever country that may be. Non-quali- It has twice been decided, both prior to and since fied authors j-^g "international copyright amendment" of 1 89 1, ^^stet th^t a foreign author not qualified to secure a copy- right cannot indirectly obtain one by assignment to an American or other proprietor. In 1890 J. M. Barrie assigned to J. W. Lovell, and he to the U. S. Book Company, his American rights in "The little minister," and after the act of 1 89 1 the latter en- deavored to restrain a dramatization of the story. Judge Jenkins held with the lower court that the for- eign author could transfer only, prior to the act, the right to publish from advance sheets and not the right to copyright. In the case of Bong v. Campbell Art Co., in which it was sought to protect under the act of 1891 a work by a Peruvian painter, Hernandez, whose country had no international relations with the United States, through transfer to a German proprie- tor, whose country had reciprocal relations, it was held in 1909 by the U. S. Supreme Court, through Justice McKenna, that an author who is a citizen of a coun- try with which the United States has no copyright relations cannot indirectly obtain American copy- right by making a citizen of a country with which the United States has copyright relations the proprietor of his work. A proprietor has been construed by the - courts to mean merely an assignee of a qualified author. It is evident, therefore, despite the ambigu- ous phrasing of the statute, that an assignee proprie- tor, though domiciled in the United States at the time of first publication of a work, could not obtain copyright unless the author were so domiciled, for the contrary ruling would nullify the general purport of OWNERSHIP III the law by permitting an assignee to acquire rights which the non-qualified author could not secure. The evident construction of the word "proprietor" in this clause is as proprietor of an impersonal work and not an assignee proprietor. The Rules and Regulations of the Copyright Office, construing the code of 1909, say specifically (2) : " If the author of the work should be a person who could not himself claim the benefit of the copyright act, the proprietor cannot claim it." But it seems that a foreigner may enter copyright Foreign in the work of a citizen or resident author — it being ownership foreign authorship, not ownership, which the law refuses to protect, though this point has not been judicially determined. Under the provision (sec. 62) of the new American code giving copyright to an em- ployer as author "in the case of works made for hire," it would seem that a person entitled to make copy- right entry might, as an employer, obtain copyright on the work of an alien employee not domiciled here and not otherwise entitled to enter copyright; but it is probable that this construction would not extend to a separate or separable work, as this would be con- trary to the principles adjudicated as above cited. The complicated question of the ownership and the right to secure copyright in translations from foreign works or into foreign languages, under this interna- tional copyright provision, is covered under trans- lation in the preceding chapter on subject-matter of copyright. Under the provisions of the international copyright Proclaimed clause of 1 89 1 Presidential proclamations have desig- countries nated as countries with which the United States has copyright relations (July I, 1891) Belgium, France, Great Britain and her possessions, Switzerland; (April 15, 1892) Germany; (Octobers:, 1892) Italy; (May 8, 1893) Denmark; (July 20, 1893) Portugal; 112 COPYRIGHT (July 10, 1895) Spain; (February 27, 1896) Mexico; (May 25, 1896) Chile; (October 19, 1899) Costa Rica; (November 20, 1899) Holland and possessions; (No- vember 17, 1903) Cuba; (January 13, 1904) China — this treaty of October 8, 1903, protecting for ten years books, maps, prints or engravings "especially prepared for the use and education of the Chinese people," or "translation into Chinese of any book," but leaving to Chinese subjects liberty to make "orig- inal translations into Chinese"; (July i, 1905) Nor- way; (May 17, 1906) Japan — this treaty of Novem- ber 10, 1905, also excepting translations, and (August II, 1908) additionally protecting Japanese relations in China and Korea; (September 20, 1907) Austria, not including Hungary; and (April 9, 1908) under the Pan American convention signed in Mexico City, January 27, 1902, effective from July i, 1908, Guate- mala, Salvador, Costa Rica, Honduras and Nicaragua. Under act Under the provisions of the act of 1909, the Presi- of 1909 (Jent of the United States issued a general proclama- tion, dated April 9, 1910, certifying anew to the exist- ence of reciprocal relations with the above-mentioned countries, under the arrangements of the new act, as from its effective date July I, 1909. This accepted such relations as continuous and uninterrupted, with- out the necessity of new treaties, with the effect that international copyrights before July i, 1909, were under the arrangements of the act of 1891 and from and after that date under the arrangements of the code of 1909. Luxemburg was added by proclamation of June 29, 1910, and Sweden by that of May 26, 1911. Proclamations of December 8, 1910, as to Germany, and June 14, I9ii,as to Belgium, Luxemburg and Norway, proclaimed reciprocal relations as to me- chanical reproductions. The ratification of the Buenos Aires convention OWNERSHIP 113 by the U. S. Senate, February 16, 1911, has the effect BuenosAirea of authorizing the President to proclaim reciprocal conventioii relations with other countries which are parties to that treaty, as each ratifies the convention. The new British measure specifies that " the author The new of a work shall be the first owner of the copyright," British code except where an engraving, photograph, or portrait is ordered for valuable consideration or where work is done in the course of employment. The owner may assign the copyright in writing, "either wholly or partially, and either generally or subject to limita- tions to any particular country, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by license"; in case of partial assignment, the original owner and the assignee become respectively the owners of the residual and assigned portions of the copyright. But any assignment, except by will, becomes null and void twenty-five years after the death of the author when the entire rights revert to his heirs. In general the statutes of most of the copyright Foreign countries designate "authors" and their "assigns P'^'tiee and heirs" as the persons who may obtain copyright. The Australian law of 1905 defines " author " to in- clude " the personal representatives of an author." In certain countries the laws specifically mention as persons who may secure copyright "joint authors," "proprietors" in some countries and "publishers" in other countries of anonymous and pseudonymous, posthumous or unpublished works, periodicals and composite works, "corporate bodies," "translators," "editors, compilers or adapters" and "persons who give a commission for a portrait or photograph." VIII Historic precedent Previous American practice DURATION OF COPYRIGHT: TERM AND RENEWAL The duration of copyright was in the early printers' privileges for a short term, as for seven years, except in France, where copyrights were in perpetuity until the act of the National Assembly; in modem times the copyright term has been lengthened until a term ex- tending through and beyond the life of the author has been adopted by thirty-seven countries, or more than half of tlaose which have copyright laws, of which four assure perpetual copyright. The Constitution imposes only one limitation on the comprehensive rights of authors, in the provision that protection shall be "for limited times" only. This provision has made the discussion of perpetual copyright purely academic in this country. The new American code adopts the double term of twenty-eight and twenty- eight years, making fifty-six years in all, without reference to the life of the author. The American law previous to 1909 provided for a uniform term of twenty-eight years, dating from the time of recording the title, with a renewal of fourteen years, securable only by the author, or, if he be dead at the expiration of the term, by his widow or chil- dren. No other heirs or persons could renew. The new code differs in making the renewal period a sec- ond twenty-eight years and extending the right of renewal to the executors or next of kin and to the proprietors of composite or other impersonal works; but it still denies renewal to assignee proprietors of personal works. DURATION 115 The American code of 1909 provides (sec. 23) Term in "that the copyright secured by this Act shall endure code of for twenty-eight years from the date of first publica- ^^^ tion, whether the copyrighted work bears the author's true name or is published anonymously or under an assumed name," and makes provision also in the cases specified for renewal for a second period of twenty- eight years, provided that renewal application is reg- istered in the Copyright Office "within one year prior to the expiration of the original term of copy- right." The provisions as to renewal are in full as follows Renewal (sec. 23) : "Provided, That in the case of any posthu- mous work or of any periodical, cyclopaedic, or other composite work upon which the copyright was origi- nally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copyrighted work, in- cluding a contribution by an individual author to a periodical or to a cyclopaedic or other composite work when such contribution has been separately registered, the author of such work, if still living, or the widow, widower or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the Ii6 copVright Extension of subsisting copyrights Assignee of unpublished manuscripts copyright in such work for a further term of twenty- eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in default of the registration of such application for renewal and extension, the copy- right in any work shall determine at the expiration of twenty-eight years from first publication." The extension of copyrights subsisting July i, 1909, is provided for as follows (sec. 24): "That the copy- right subsisting in any work at the time when this Act goes into effect may, at the expiration of the term provided for under existing law, be renewed and extended by the author of such work if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then by the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this Act, including the renewal period: Provided, however, That if the work be a composite work upon which copyright was orig- inally secured by the proprietor thereof, then such proprietor shall be entitled to the privilege of renewal and extension granted under this section: Provided, That application for such renewal and extension shall be made to the copyright office and duly registered therein within one year prior to the expiration of the existing term." In holding with the Attorney-General that an assignee cannot obtain renewal. Judge Brown in the U. S. Circuit Court in Rhode Island, in White Smith V. Goff, in 1 910, raised but did not decide the "diffi- cult" question whether, if an author sells his unpub- lished manuscript with right to publish and copy- DURATION 117 right, the new owner as the original copyright proprietor may claim renewal, or whether the author might reclaim the right. Under the provisions of the renewal clauses (sec. Extension of 24), not only may the original copyright term of a subsisting subsisting copyright be renewed for the longer term "'**^"'^ of twenty-eight years instead of fourteen years, but a subsisting copyright renewal may be extended from the added fourteen years to the full renewal term of twenty-eight years, and a separate application form for this latter class of cases is provided by the Copy- right Office. In the copyright conferences, it was pointed out PubUshers' by publishers that the right of the author to re- equities newal, and the implied denial of that right to an assignee proprietor, placed at serious disadvantage a publisher who had made investment in plates of an author's works, and would be deprived of the use of his investment at the end of the original term in case the author preferred to make arrangements with another publisher for the renewal term. The Con- gressional Committee failed, however, to provide a remedy for this through the proposed Monroe-Smith amendment, requiring that in such case author and publisher should unite in the application for renewal. No contract on the part of an author can give a publisher the right to claim copyright renewal under the new code, although a contract to make claim for the renewal period and transfer the copyright for the renewal period to the publisher, might be enforced by the courts through a writ requiring the author to enter such claim and assign the renewed copyright in accordance with the contract. When a copyrighted work is sold "outright," it therefore does not include renewal of the copyright, and unless the author regis- ters his renewal claim, the right to renewal lapses. ii8 COPYRIGHT Estoppel of renewal Life term and beyond Where an author has sold "outright" all his right, title and interest in his work, it is possible that this may estop him from application for renewal or invali- date a renewal, but this question must be decided by the courts when a case arises. It is important that any contract between author and publisher should be clear and specific on this vexed question of rights for the renewal term. No provision is made for notifica- tion of renewal in the copyright notice, and therefore, after the expiration of the original term, information must be sought from the Copyright Office as to whether there has been renewal extension of the term. As it would be hazardous to omit the original copy- right notice or to replace it by one giving the date of renewal, which might be construed to involve claim of a longer term and thus defeat itself, it may prove the wiser course to add to the official original notice, the unofficial notice "Copyright renewed, 19 ." The international copyright convention, as modi- fied at the Berlin conference of 1908, adopted the term of life and fifty years, — previously in force in France and fourteen other countries, — subject to adoption by domestic legislation. A term of life and a specified number of years after the death of the author, preferably fifty years for personal works, and a term of fifty years for impersonal works, was advocated by the American Copyright leagues and other friends of copyright and was in the early drafts of the new copy- right code. It was pointed out that Emerson, Longfellow, Lowell, Whittier, Holmes and others outlived their earlier copyrights; that Edward Everett Hale, whose " Man without a country " did for this nation a patri- otic service scarcely second to that of the great generals of the civil war, had no longer copyright in this work, although private soldiers, their relicts and descend- DURATION 119 ants, were still paid pensions ; and that many others of our foremost authors had been, or under the present system would be, deprived of their created property within their lifetime. The term advocated provides for the author and his children's children during the probable minority of the grandchildren, a period to which the entail of realty is limited by our laws. But the final decision of the Congressional Commit- tees was for the simpler, though in other respects less satisfactory, period of twenty-eight years, as hereto- fore, with a renewal period of a second twenty-eight years, under the limitations above cited. No other countries, except Canada and Newfoundland, follow- ing our example, have this double or renewal term. As a lecture or other work intended for oral de- Unpublished livery or a dramatic or musical work or a work of works art, an unpublished dramatic or musical work or a work of art not reproduced in copies for sale is copy^ rightable without reference to date of publication, it is not altogether certain whether the term extends from the date of registration or the date of first de- livery, performance or exhibition, or whether the statutory law now protects such a work under com- mon law as unpublished, pending publication and therefore for an indefinite period if not practically in perpetuity. The Copyright Office issues a certificate for twenty-eight years, but without reference to initial date, which would be presumably the date of the certificate. The Copyright Office will doubtless, under this precedent, issue renewal pertificate for the second term of twenty-eight years. As the new copyright code makes publication with PubUcation notice the basis of copyright instead of entry and as date of deposit, as formerly, the term of copyright now dates ''"P^'ebt from publication, and "the date of publication" is specifically defined (sec. 62) as "the earliest date 120 COPYRIGHT Serial pablication Joint authorship when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority." Such date is included in the application for registry at the Copyright Office, and on the same day twenty- eight years or fifty-six years thereafter the copyright ends. A provision for terminating copyrights at the end of the calendar year of expiration was included in the early drafts of the code, but was not included in the law as enacted. In the case of works published and copyrighted as serials, as a novel published in parts in a monthly magazine, the copyright runs technically from the first publication of each part; and at the end of the twenty-eight or fifty-six years, each part could be successively published at monthly intervals free from copyright. Practically, however, such a copyrighted serial could not be published complete until twenty- eight or fifty-six years from the publication of the last part. In usual practice a novel is printed in book form a month or two before its completion as a serial in a magazine, and the date of the copyright on the completed work would then terminate at the end of the twenty-eight or fifty-six years from publica- tion in book form. The use of the date of publication as the beginning of the copyright term and the specification of twenty- eight years and twenty-eight years for its duration, obviates questions as to anonymous and pseudony- mous works, composite works or works of joint au- thorship. The earlier drafts of the bill, providing for a term through and beyond life, made the lifetime of the last surviving author the basis for the term of copyright on works of joint authorship. This method was interestingly applied in the German courts, when it was held as to the opera "Carmen" that Bizet's DURATION 121 music was out of copyright, but that the libretto was protected because one of its three joint authors was still living. A copyright is terminated ipse facto by forfeiture as Termination provided in the act, either because of failure to de- by forfeiture posit copies after notice from the Copyright Office (sec. 13), or because of false affidavit of American manufacture (sec. 17). It may also be terminated by laches, that is, carelessness in protecting one's rights, as by omission of the notice, unless by accident or mis- take, from particular copies (sec. 20). A copyright may be terminated by voluntary Abandon- abandonment or purposed dedication as well as by ex- ™^''* piration, forfeiture or laches. Thus in 1854 Congress purchased for $10,000 the copyright of Sumner's new method of ascertaining a ship's position, dedicated the method to general public use, and extinguished the copyright. The Copyright Office has no authority to recognize annulments, but it has noted request for an- nulment when received on the registry. In 1910 the Oxford University Press, American Branch, formally notified the Treasury Department that they aban- doned the copyright on Oxford Cyclopaedic Concord- ance copyrighted by them in 1903, and collectors of customs were accordingly authorized by circular let- ter of January 25, 1910, to permit importation "of any copies of the said work with the notice of the copyright obliterated, or a notice of the abandonment of the copyright plainly printed upon the same page with the notice of copyright and adjacent thereto." This last was a curious "boomerang" effect of the manufacturing clause as extended to binding in the act of 1909. In England the term of book copyright has been the In England life of the author and seven years after his death, or forty-two years from first publication, whichever 122 COPYRIGHT the longer. The copyright in other articles has varied according to specific laws. The Copyright Commis- sion of 1876 proposed, for all copyright articles as well as books, a term of life and thirty years after the author's death, according to the German precedent, or in case of anonymous and posthumous books and encyclopaedias, thirty years from the date of deposit in the British Museum, an anonymous author to have the right during the thirty years to obtain the full term by publishing an edition with his name. The English law contained a specific provision that in the case of articles in periodicals (but not in an encyclopaedia) the right to publish in separate form should revert to an author after twenty-eight years; the Commission proposed a term of three years, dur- ing which time also the author as well as the general owner may bring suit against piracy. The English committee appointed to make recommendations in respect to the adoption of the Berlin provisions of 1908 through domestic legislation, however, reported strongly in favor of a general term of life and fifty years ; and this term has been adopted in the new code. The new This general term of "the life of the author and a British code period of fifty years after his death" holds "unless previously determined by first publication elsewhere." In joint authorship, copyright shall subsist during the life of the author who first dies and fifty years after or during the life of the author who dies last, whichever the longer. In posthumous works, copyright subsists for fifty years from first publication or performance, whichever the earlier. Anonymous and pseudony- mous, and corporate works are not named in the act, and the term is presumably fifty years, unless in the former cases identity is disclosed. For photo- graphs and mechanical music reproductions as such, the term is fifty years from the making of the original DURATION 123 negative or the original plate. Existing copyrights are extended through the new period; but for the ex- tended term the rights revert to the author, though an assignee may require continuance of the assign- ment or continue to publish on royalties, as deter- mined by agreement or arbitration. Assignments, except for parts of collective works, terminate in twenty-five years, when rights revert to the heirs. The Crown has held an exclusive and perpetual right Perpetual to license the printing of the Bible, Book of Common copyright Prayer, ordnance surveys, and possibly the Acts of Parliament; and specified universities and colleges were assured perpetual copyright in works given or bequeathed to them unless given for a limited term, but the right lapsed into the usual copyright term unless the work were printed on their own presses and for their own benefit. Under the new code, "without prejudice to any rights or privileges of the Crown," any work prepared or published for His Majesty or any Government department has copyright for fifty years from first publication — the effect of which provision on Crown perpetual copyrights is not clearly evident. A saving clause protects the univer- sities "in any right they already possess," inferen- tially limiting their future copyrights to the statutory term. After the death of the author of a literary, dramatic or musical work, on complaint of the with- holding of the work from publication or performance, the Judicial Committee of the Privy Council may require the owner to grant a license to reproduce or perform the work in public under conditions deter- mined by" the Committee. After twenty-five years, or in the case of existing copyrights thirty years from the author's death, the work may be reproduced by any person on prescribed notice in writing of his inten- tion and payment of ten per cent on the published 124 COPYRIGHT other coun- tries Interna- tional standard term Special categories price in accordance with regulations by the Board of Trade. Perpetual copyright is granted by the laws of other countries, Mexico, Guatemala, Nicaragua and Vene- zuela, while in Montenegro, Egypt, Liberia, Hondu- ras, the Dominican Republic, Paraguay and Uruguay, which give copyright protection without specific leg- islation under a crude civil or common law enforced by the courts, the term is indefinite. A copyright term extending eighty years beyond the death of the au- thor is granted by Spain, Cuba, Colombia and Pan- ama. The French precedent of fifty years after the author's death was followed by Belgium, Russia and the Scandinavian countries, Hungary, Portugal and some others, and was adopted by the Berlin conven- tion as the international standard term ; the German precedent of thirty years beyond death was followed by Austria, Switzerland and Japan, while the British precedent of seven years beyond death or forty- two years from publication, whichever the longer, was followed in many of the English colonies and in Siam. Italy has a curious term of life or at least forty years after publication, with a second period of forty years during which, though the exclusive rights lapse, the author enjoys a royalty of five per cent on publication price. Haiti has the curious term of the life of the author and twenty additional years for widow or children, or ten years for other heirs. In Holland fifty years or life, in Brazil fifty years from the preceding January ist, and in Greece fifteen years are specified. In many countries there are special terms for spe- cial categories of works, as for anonymous, pseudony- mous, and corporate works, translations, photographs and telegraphic dispatches — the latter for a stated number of hours. IX FORMALITIES OF COPYRIGHT: PUBLICATION, NOTICE, REGISTRATION AND DEPOSIT Copyright may inhere as a natural right, as under General English common law before the statute of Anne, principles without record or formalities, but also without statu- tory protection; or formalities may be required only as a prerequisite to protection by actions at law; or formalities may be required to validate and secure the copyright. English formalities belong to the sec- ond class. American formalities are of the third class, and without them copyright does not exist. The American copyright law of 1909 prescribes Previous' exactly the method of securing copyright, and makes American clear the cases in which non-compliance invalidates ''®'"''*™^" * copyright. Previous to 1909 copyright was secured by complying exactly with the statutory require- ments of (i) the delivery to the Librarian of Congress on or before the day of publication, in this or any foreign country, of a printed (including typewritten) copy of title or description of the work, (2) the inser- tion in every copy published of the prescribed copy- right notice, and (3) the deposit not later (under the law of 1 891) than such day of publication (earlier law allowing ten days after publication) of two copies of the best edition of a book or other article, or a photo- graph of a work of art (eis to date of deposit of which last the law was not explicit) ; and any failure to com- ply literally and exactly with these conditions for- feited the copyright. The American code of 1909 substitutes an entirely different basis for securing copyright. Copyright 126 COPYRIGHT Present American Provisions of igoj) Publication now depends upon (i) publication with the notice of copyright, and (2) deposit of copies, these copies in the case of books and certain other works to be man- ufactured within the United States. The accidental omission of the copyright notice from "a particular copy or copies" does not invalidate the copyright though it may relieve an innocent trespasser from penalty as an infringer; but failure to deposit within a specified time, or false report as to manufacture, makes the copyright not valid. The general provisions as to formalities are as follows (sec. 9): "That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright re- quired by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright pro- prietor, except in the case of books seeking ad interim protection under section twenty-one of this Act"; and (sec. 10): "That such person may obtain regis- tration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the Register of Copyrights shall issue to him the certificate provided for in section fifty-five of this Act." The definition in the act (sec. 62) of "the date of publication " as " the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copy- right or under his authority" defines publication, and the clause (sec. 9) requiring the copyright notice to be affixed to each copy "published or offered for sale in the United States by authority of the copyright proprietor" confirms the principle that the copyright proprietor cannot be held responsible, nor can copy- right bevoided because of copies "published," offered, FORMALITIES 127 sold or distributed without his authority. The Copy- right Office Rules and Regulations (23) add to the de- finition of publication the parenthetical explanation: " («'. e., so that all persons who desire copies may obtain them without restriction or condition other than that imposed by the copyright law)." It is questionable, however, whether this explanation does not go beyond the letter of the law. In Stern v. Remick, in 1910, the U. S. Circuit Court protected the copyright of a song, though only one copy had been offered for sale and sold. Advance distribution to the trade or of review copies would not constitute publication. While the law does not prescribe first publication in this country, it is at least doubtful whether a book published in another country prior to publication here, unless protected by international copyright relations, has not fallen into the public domain and thus forfeited copyright protection here. The first step in securing copyright, being publica- Copyright tion "with the notice of copyright" "affixed to each notice copy published or offered for sale in the United States by authority of the copyright proprietor," the method and form of this notice is of first importance. The act of 1909 provides (sec. 18) : "That the notice of copy- right required by section nine of this Act shall consist either of the word 'Copyright' or the abbreviation 'Copr.,' accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication. In the case, however, of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: (c), accompanied by the initials, monogram, mark, or symbol of the copy- right proprietor: Provided, That on some accessible 128 COPYRIGHT PrcTious statutory form Exact phra- seology required portion of such copies or of the margin, back, perma- nent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear. But in the case of works in which copyright is sub- sisting when this Act shall go into effect, the notice of copyright may be either in one of the forms pre- scribed herein or in one of those prescribed by the Act of June eighteenth, eighteen hundred and sev- enty-four." Under the law of 1874, the prescribed notice was in the old form (Rev. Stat. 4962), "Entered according to Act of Congress, in the year , by A. B., in the office of the Librarian of Congress, at Washington," with the optional alternative of the form " Copyright, 18 — ^ by A. B." Under the new code the latter form is preserved, with the alternative of the provision "Copr.," with date and name, but the longer form may be used on books copyrighted under the earlier acts, even if reprinted after the passage of the later act. Except for books previously copyrighted, the longer form is not now the legal notice, and its use would be dangerous, as it does not contain the specific word copyright, or its abbreviation, now made an obligatory part of the notice. While in Osgood v. Aloe in 1897, the omission of the name from the notice, though on the title-page, and in Record & Guide Co. v. Bromley in 1910, the omission of the date, though indicated by the date of the periodical in the line below, were held to void the copyright, such addition as the words "published by" has been held, as in Hills v. Hoover in 1905, a mere superfluity not voiding copyright. The exact phraseology and order of words must be followed, and it has been held that any inaccuracy in the name of the copyright proprietor, as in the English case of Low v. Routledge, by Vice-Chancellor Kinders- FORMALITIES 129 ley, in 1864, or in the date of the entry, as in the Ameri- can case of Baker v. Taylor in 1848, when 1847 was put for 1846, makes the copyright invalid. The name in the copyright notice (CO. Rule 24) Name must be the real name of a living person or of a firm or corporate body or the trade name in actual use, and may not be a pseudonym or pen-name or other make- believe. A copyright notice should not be in the name of one person for the benefit of another; the benefi- ciary's name should be the one printed. A publisher may take out a copyright for an author, however, in which case the publisher's name and not the author's name will be given, unless the publisher makes appli- cation as the agent of the author-claimant. The name in the copyright notice must correspond fully with the real name as given in the application, but an ob-? jection that N. Sarony instead of Napoleon Sarony was not the real name, was quashed in 1 884, in Burrow- Giles Lith. Co. V. Sarony, by the U. S. Supreme Court. The date of copyright notice, being that of publi- Date cation, should correspond with the imprint date on the original edition ; but on later printings or editions, where the date of imprint is changed, the copyright notice would of course show the earlier date of the original edition. Thus a book first published in 191 1 could not bear copyright notice of 19 10 date, which would mean that copyright was registered before instead of after publication, which is not possible under the new law; nor should an edition of 19 10 bear copyright notice of 191 1 , as the application and notice should state the actual year of publication; and the date of 191 1 in imprint where the copyright notice is of 1910, would be correct only on a later edition, as above stated. A book may be printed, however, in a certain year and not published till a later year, in which case the copyright notice would be of later 130 COPYRIGHT date than the imprint date; thus the Copyright Office registered in 1910, under the new law, a copy- right on a work with the imprint of 1904, on assur- ance that though printed in 1904, the work was not actually published until 1910. Under the old law, where, as stated above, a copyright notice later than the actual copyright was disallowed as claiming pro- tection beyond the copyright term, a later decision, in 1888, in Callaghan v. Myers, held, that where a copy- right notice gave the year 1866, while the true date was 1867, there was no harm done to the public, be- cause a year of the copyright, which really ended in 1895 instead of 1894, was given to the public, whereas in the previous case an additional year was claimed. Doubt was thrown upon this decision by Judge Wal- lace in Schumacher v. Wogram, also in 1888. In Snow V. Mast in 1895, the substitution for 1894 of the abbre- viated '94, and in Stern v. Remick in 1910, the use of words or Roman numerals for Arabic, were upheld. Accidental An important safeguard, new in copyright law, is omission enacted in the provision (sec. -20): "That where the copyright proprietor has sought to comply with the provisions of this Act with respect to notice, the omis- sion by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright or prevent recovery for infringement against any person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent infringer who has been misled by the omis- sion of the notice; and in a suit for infringement no permanent injunction shall be had unless the copyright proprietor shall reimburse to the innocent infringer his reasonable outlay innocently incurred if the court, in its discretion, shall so direct." It is further provided (sec. 19): "That the notice FORMALITIES 131 of copyright shall be applied, in the case of a book or Place of other printed publication, upon its title-page or the '****•"=* page immediately following, or if a periodical either upon the title-page or upon the first page of text of each separate number or under the title heading, or if a musical work either upon its title-page or the first page of music : Provided, That one notice of copy- right in each volume or in each number of a news- paper or periodical published shall suffice." Although the code of 1909 relieves the copyright proprietor from permanent forfeiture in the case of an accidental omission of the copyright notice from certain copies (sec. 20), the statute is otherwise speci- fic, and there seems to be no means of relief where the copyright notice is, however innocently, in the wrong place or in the wrong form. Thus in 1909, in Freeman V. Trade Register, the U. S. Circuit Court held that where the copyright notice of a periodical appeared on the editorial page, which was not the first page of text, the copyright was voided. The copyright notice can probably, however, be placed safely and preferably on the first page, being the title-page, of a specially copyrighted part of a book, as an introduction pre- ceding a non-copyright work or an index or ap- pended notes, or upon specific illustrations ; and this is perhaps preferable in copyrighting editions with such features of works otherwise in the public domain. In the case of articles in a periodical or parts of a com- posite work separately copyrighted or registered, the copyright notice should appear on the same page as the title heading. The proviso (sec. 19) that one notice of copyright One notice in each volume or in each number of a periodical shall suffi«ent suffice is complementary to the provision (sec. 3) by which a copyright protects all the copyrightable com- ponent parts of the work copyrighted, and gives to 132 COPYRIGHT the proprietor of a composite work or periodical all the rights he would have if each part were individu- ally copyrighted. It means that there need be no repetition of the general copyright notice on different portions of a book or periodical. In West Pub. Co. v. Thompson Co., under the old law, Judge Ward, in the U. S. Circuit Court of Appeals in 1910, overruled the defense that the copyright was not valid because the copyright notice did not repeat the several copy- right notices originally protecting the several parts of the compilation; and this view, that the general copy- right notice protects all copyrighted and copyright- able parts, is now specifically embodied in the statute. Separate The proviso (sec. 61) " that only one registration at volumes Q^e fee shall be required in the case of several volumes of the same book deposited at the same time" indi- cates that one copyright entry suffices for several volumes simultaneously published, but each separate volume should contain the notice. Volumes pub- lished separately, not only in successive years but at successive dates within the year, should be separately registered, and if published separately in successive years, must each bear its copyright notice for the year of publication — this being the direct sequence from the provision that copyright runs from the spe- cific date of publication and not from the year or date of registration. The Copyright Office will, however, under the law, register for one fee volumes or parts deposited at the same time, though published at various times. In the case of a book issued in succes- sive parts, of which only the first part includes a title- page or title headings, the law is not specific; but it seems probable that, in default of copyright notice and registration for each part, the parts not bearing copyright notice might be legally reprinted, and that the safer course is to place the copyright notice on the FORMALITIES 133 first page of each part and register each part sepa- rately, in which case the completed work should have the date or dates of the year or years within which the several parts were published. There seem to be no objections, within the law or from court decisions, Different to coupling two dates in the same notice, in such cases ^***^ as "Copyright, 1910, 191 1, by A. B.," though there is no specific decision on this point. Under the previous law a book published in more than one volume or part, the portions not complete in themselves, was probably protected by copyright entry of the first part, all parts being of course ultimately deposited; but the change in the new code basing copyright on publication with notice,- seems to change this rule of practice. In the case of Dwight v. Appleton, in 1840, it was held that as the statute did not expressly pre- scribe that the copyright notice should appear in suc- cessive volumes after the first, this was not necessary; but the application of this doubtful decision under the new code would be more than questionable. It may be emphasized that publication with notice is Notice part the first step in copyright under the new code, and that "^ ""tial registration on deposit is the secondary and complet- ^ *^ ing act, and therefore that no registry in the Copy- right Office is necessary to authorize the printing of the copyright notice, as was formerly the case. The requirement (sec. 9) that the notice of copy- Extraterri- right "shall be affixed to each copy published or of- torial notice fered for sale in the United States by authority of the copyright proprietor" makes clear what was a subject of dispute under the old law. The courts, however, generally held that extraterritorial notice of copy- right, i. e. on foreign editions, was impracticable and unnecessary; and this view is specifically adopted in the new code. In 1905, in Harper v. Donohue, it was held by Judge Sanborn, in the U. S. Circuit Court, 134 COPYRIGHT Successive editions False copy- right notice that the omission of the American copyright notice from an English edition could not vitiate copyright here, especially in view of the prohibition in the law of the importation of foreign-made copies of copy- right works. In 1908, in Merriam v. United Diction- ary Co., it was held by the U. S. Supreme Court, through Justice Holmes, that even where the omis- sion of the notice on a foreign-made edition was with the assent of the American copyright proprietor, there was no waiver of copyright in this country. In the case of successive printings or editions of a copyrighted book, the original copyright entry must appear in every reprint of the first edition; and it would seem that this entry should also appear in every new edition newly copyrighted, as well as the new notice, so long as it is desired to protect the mat- ter contained in the old edition. Judge Clifford, in the U. S. Circuit Court, in Lawrence v. Dana, in 1869, ruled this to be superfluous ; but his decision is contrary to the rule that a proprietor may not claim through the copyright notice a longer term than the law permits, since a later date, referring only to new matter, but apparently comprehensive of the whole contents, might be voided under this rule. It is doubtful whether on a new edition with old and new matter one copyright notice with two dates is safe, and the wiser course is to give both the earlier copyright notice and the later notice in proper sequence. In the case of new printings of works published and copyrighted prior to July i, 1909, no new notice or application is required unless there is added material to be additionally protected and constituting to that extent a new work, in which case a new application and the deposit of two copies is necessary. Provision is specifically made against false notice of copyright by the enactment (sec. 29): "That any FORMALITIES 135 person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopy- righted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, pun- ishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars," and the importation of any article bearing a notice of copyright when no American copyright exists is absolutely prohibited (sec. 30). It should be noted that the copyright notice is not Ad interim required on books published abroad in the English protection language before publication in this country, entered for ad interim copyright, and therefore that within sixty days after the publication abroad of a book in the English language, such book may be protected by American registration, though containing no notice of copyright; and within this period inquiry at the Copyright Office is necessary to determine the status of the book. It is provided (sec. 46): " That when an assignment Substitution of the copyright in a specified book or other work has "^ "lame been recorded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act." This applies only where the entire copyright has been assigned and the assignment duly recorded in the Copyright Office as provided by law, and does not permit a change of name in the copyright notice under any other cir- 136 COPYRIGHT cumstances, as partial assignment. Substitution without authority of law voids copyright, as was held in Record & Guide Co. v. Bromley in 1910, where another trade name of the copyright claimant was substituted for the original trade name. Registration The method of registration, or rather of applica- tion therefor, is not specified in the law, for the reason that under the code of 1909 deposit succeeding pub- lication is made the act completing the securing of copyright, and registration is incidental thereto in- stead of the first requisite. Under the old law it was decided in the U. S. Circuit Court through Judge Colt, in Gottsberger v. Estes, that publication before deposit of copies voided the copyright. Rules and The act provides (sec. 53): "That, subject to the regulations approval of the Librarian of Congress, the Register of Copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this Act," and (sec. 54) "whenever deposit has been made in the Copyright Office of a copy of any work under the provisions of this Act, he shall make entry thereof." Application It is provided (sec. 5): "That the application for registration shall specify to which of the [stated] classes the work in which copyright is claimed be- longs," but it is also provided "nor shall any error in classification invalidate or impair the copyright pro- tection." In Green v. Luby, in 1909, the U. S. Circuit Court protected a vaudeville sketch, though classified as a dramatic instead of a dramatico-musical copy- right, against infringement by a mimic performance. Certificate It is further provided (sec. 55) : "That in the case of each entry the person recorded as the claimant of the copyright shall be entitled to a certificate of registration under seal of the Copyright Office, to contain his name and address, the title of the work FORMALITIES 137 upon which copyright is claimed, the date of the de- posit of the copies of such work, and such marks as to class designation and entry number as shall fully identify the entry. In the case of a book the certifi- cate shall also state the receipt of the affidavit as pro- vided by section sixteen of this Act, the date of the completion of the printing, or the date of the publi- cation of the book, as stated in the said affidavit. The Register of Copyrights shall prepare a printed form for the said certificate, to be filled out in each case as above provided for, which certificate, sealed with the seal of the Copyright Office, shall, upon payment of the prescribed fee, be given to any person making application for the same, and the said certi- ficate shall be admitted in any court as prima facie evidence of the facts stated therein. In addition to such certificate the Register of Copyrights shall fur- nish, upon request, without additional fee, a receipt for the copies of the work deposited to complete the registration." The application is in general in simple form, and Application care should be taken in filling out the card that the 'equire- space at the top intended for use by the Copyright Office should be left blank. The application must be signed with the name and address of the copyright claimant, who may be the author or his representa- tive, as where his publisher is taking out the copy- right. In the case of works made for hire, the em- ployer may make application as author. The name of the author should be given on the line provided for that purpose, even though the name of the author as claimant is also given above; but in the case of anony- mous or pseudonymous works, the name of the author is not required. The title should be given exactly as on the title-page of the book or on the work, and the other particulars called for in the application should 138 COPYRIGHT be exactly as indicated by the work itself. The day of publication must be exactly stated, and the appli- cation cannot be made, therefore, until after publica- tion. Provision is also made on the card for the name and address of the person to whom the certificate of registration is to be sent and of the remitter of the fee, and in the case of books, the application must be ac- companied by the affidavit made either on the reverse of the application card or on the separate card also provided. In applications, as for foreign or ad interim copyright, where the nationality of the author should be stated, information as to citizenship, not race, is required. A person naturalized in the United States is defined as an American. A foreign author claiming copyright because of residence, must state that he is a "permanent resident" of the United States (C. O. Rule 29). Illustrations The illustrations of a book may be separately regis- tered, and if by lithographic or photo-engraving process must also have affidavit of manufacture in this country. Maps and charts are classed with works of art, and the formalities in respect to these, as well as in respect to dramatic and musical compositions, are treated specifically in the chapters on those specific sub- jects. Periodicals In respect to periodicals, application should be made as for books, but no affidavit is required ; sepa- rate registration is necessary for each number pub- lished, with notice of copyright, and can be made only after publication. It is not possible to register the title of the periodical in advance of publication. (C. O. Rule 36.) Two deposit copies of periodicals are required ; but a contribution to a periodical sepa- rately registered requires the deposit of only one copy of the periodical. The entire copy should be sent, as FORMALITIES 139 a mere clipping does not comply with the statute. (C. O. Rule 37.) The date of publication of a period- ical is not necessarily the printed date of issue, and the actual day of publication should be stated in the application, whether for the registration of the peri- odical itself or a contribution to it. The Copyright Ofifice has prepared blank forms in Application library card shape, which are furnished applicants '^^^^ free of charge, for the several classes of applications mentioned in the law, the cards being in pink, except as hereafter stated, lettered and numbered as fol- lows : (A') book by citizen or resident of the United States; (A^ New ed.) new edition of book by citizen or resident of the United States ; (A' for.) book by citizen or resident of a foreign country, but manu- factured in the United States ; (A^) edition printed in the United States of book originally published abroad in the English language, all these being double cards including affidavit of American manufacture — sup- plemented by blue cards providing with specific in- structions, (A^) for separate affidavit of American manufacture from type set or plates made in the United States, and (A^) for lithographic or photo- engraving process within the United States; (A') book by foreign author in foreign language ; (A*) ad interim copyright — book published abroad in the English language; (A^ contribution to a newspaper or periodical ; (B^) periodical, — for registration of sin- gle issue; (B^) periodical, — general application and deposit, supplemented by a white blank for deposit- ing single subsequent issues; (C) lecture, sermon, or address prepared for oral delivery; (D^) published dramatic composition; (D^) dramatic composition not reproduced for sale; (D') dramatico-musical composition; (E') published musical composition; (E*) musical composition not reproduced for sale — 140 COPYRIGHT these supplemented by a blue card ( V) , notice of use on mechanical instruments; (F) published map; (G) work of art (painting, drawing, or sculpture), or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or technical character; (JO photograph published for sale; (J^ photograph not reproduced for sale; (K) print or pictorial illustration; (R') renewal of copy- right subsisting in any work; (R^ extension of a re- newal copyright subsisting in any work. Thus an applicant for copyright on an American book should send for card (A^) , on which he may enter his appli- cation and also include afBdavit as to American type- setting, printing, and binding; if he wishes the affida- vit to be separately made he should obtain also the special blue card (A^), or if lithographic or photo- engraving is used he should obtain also the special blue card (A^). A dramatic applicant should send for card (D^ or card (D*), respectively, for the entry of a dramatic or dramatico-musical composition ; or for (D^ if he desires to copyright without reproducing for sale. The applicant for a musical composition, as distinguished from a dramatico-musical work, should send for card (E') or (E'') respectively. The art ap- plicant should send for card (G) for an original work of art, or card (H) for a reproduction, or for a photo- graph card (JO or card (JO respectively. Certificate Similar certificate cards, also of library size, uni- cards formly white, are provided for the several classes of registration, correspondingly lettered and numbered, except in a few cases where one certificate form serves for more than one class or subdivision, with the addition of a general form (Z) to cover anything unprovided for in the other certificate forms. The certificate bears on one side the uniform statement of the deposit of two copies or one copy of the article FORMALITIES 141 named herein, and of registration for the first or re- newal term, with the name of the claimant (printed in the case of a few of the publishers making most applications), and on the other side the specification (following the wording of the application and the deposit copy) of the title or description, date of pub- lication, receipt of affidavit (where required), receipt of copies and entry number by class, together with the seal of the Copyright Office. This certificate is sent without charge other than Fees the fees directly provided for in the law (sec. 61), viz., "for the registration of any work subject to copyright, deposited under provisions of this Act, one dollar, which sum is to include a certificate of registration under seal : Provided, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of registration made, fifty cents. . . . For recording the extension or renewal of copyright pro- vided for in sections twenty-three and twenty-four of this Act, fifty cents." The law no longer contem- plates record before publication, and it is unnecessary and undesirable to send application or money pre- vious to sending of deposit copies. In fact, as the cer- tificate must show date of publication, publication cannot be anticipated, and money sent in advance, for individual registrations, is only an embarrassment to the Copyright Office. The Office will, however, re- ceive advance deposits from publishers of periodicals or other publishers making frequent registrations, against which each registration will be charged. Fees should be sent by money order, or at the remitter's risk, in currency (but not in stamps). Bank drafts and certified checks are accepted in practice, though the Register of Copyrights cannot legally receive checks except at his personal risk and therefore from persons 142 COPYRIGHT known to him as in frequent relation with the Copy- right Office. Postage must be prepaid on the signed application, as there is no provision for free trans- mission through the mails, such as applies to deposit copies. In practice the application with remittance and the deposit copies should be simultaneously sent immediately after publication. Deposit The law provides that deposit copies shall be sent promptly after publication, and that two complete copies of the best edition then published (or one copy in case of a contribution to a periodical or for iden- tification of a work not reproduced for sale) shall be deposited; and if a work is published with notice of copyright, and copies are not promptly deposited, the copyright is voided and the proprietor becomes subject to penalty three months (or in case of out- lying possessions or foreign countries six months) after formal demand by the Register of Copyrights for deposit copies. The word "promptly" is indefi- nite and has been vaguely construed to mean "with- out unnecessary delay," but this does not mean the very day of publication (C. O. Rule 22) . The status of undeposited works published with copyright notice and not formally demanded by the Register of Copy- rights, is also not defined by the law. In such case the copyright has not been perfected by the completing act, and it would be impracticable to proceed against an infringer, and the proprietor might be liable to penalty for false notice of copyright. In the event of such a case arising, through carelessness or other- wise, the courts would have to decide the question by definition of the word "promptly" and an interpre- tation of the implication that copyright is voided, meaning that the right to obtain copyright lapses, if the process is not completed without undue delay. The deposit copy must be the complete work; a FORMALITIES 143 fragment is not a work, and a part of a work cannot Fragment be copyrighted, especially as this would nullify the not de- man'ufacturing clause, as set forth in the opinion of P°®'**^'** the Attorney-General, February 9, 1910. A work may be published and deposited in type- Type-writ- writing copies, as set forth in the opinion of the ingpublica- Attorney-General of May 2, 1910, but this will not deposS* operate to avoid the manufacturing clause when the work is published in print. The completion of the copyright by deposit of Legal copies is covered by the provision (sec. 12): "That provisions after copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly de- posited in the Copyright Ofifice or in the mail ad- dressed to the Register of Copyrights, Washington, District of Columbia, two complete copies of the best edition thereof then published, which copies, if the work be a book or periodical, shall have been pro- duced in accordance with the manufacturing provi- sions specified in section fifteen of this Act ; or if such work be a contribution to a periodical, for which con- tribution special registration is requested, one copy of the issue or issues containing such contribution ; or if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction provided by section eleven of this Act, such copies or copy, print, photo- graph, or other reproduction to be accompanied in each case by a claim of copyright. No action or pro- ceeding shall be maintained for infringement of copy- right in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with." In case of failure to deposit, the law of 1909 pro- vides for penalties and finally voiding of the copy- 144 COPYRIGHT Voiding by failure to deposit Forfeiture by false affidavit Works not reproduced right, as follows (sec. 13): "That should the copies called for by section twelve of this Act not be promptly deposited as herein provided, the Register of Copyrights may at any time after the publication of the work, upon actual notice, require the proprie- tor of the copyright to deposit them, and after the said demand shall have been made, in default of the deposit copies of the work within three months from any part of the United States, except an outlying territorial possession of the United States, or within six months from any outlying territorial possession of the United States, or from any foreign country, the proprietor of the copyright shall be liable to a fine of one hundred dollars and to pay to the Library of Congress twice the amount of the retail price of the best edition of the work, and the copyright shall become void." In the case of a printed book or periodical or of a lithograph or photo-engraving, the copies deposited must be manufactured in America, as set forth in the manufacturing provision (sec. 15) as verified in the case of a book by affidavit (sec. 16) separately treated hereafter, and the book copyright is forfeited (sec. 17) in the event of false affidavit. Thus failure to deposit, and, in the case of books, false affidavit as to Amer- ican manufacture, are the two lapses of formalities which work forfeiture of copyright. In the case of works not reproduced for sale, copy- right may be secured under the provision (sec. 11): "That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one com- plete copy of such work if it be a lecture or similar production or a dramatic or musical composition; of a photographic print if the work be a photograph; of a photograph or other identifying reproduction FORMALITIES 145 thereof if it be a work of art or a plastic work or drawing. But the privilege of registration of copy- right secured hereunder shall not exempt the copy- right proprietor from the deposit copies under sec- tions twelve and thirteen of this Act where the work is later reproduced in copies for sale." The entire work should in each case be deposited (C. O. Rule 18) and not a mere outline, epitome or scenario ; and the copy should be in convenient form, clean and legible, with the leaves securely fastened together, and should bear the title of the work exactly as given in the ap- plication. It should be noted that in this class of copyright, Second which is a common law copyright fortified by statu- registration tory protection, an ideal example of copyright law, double registration is required in case the unpub- lished copyrighted work is published, requiring one application fee and deposit of one identifying copy for the unpublished work and a second application fee and deposit of two copies promptly after publication. It should be noted that the deposit copies may be Free trans- deposited either in the Copyright Office or "in the ^*'°° *" mail addressed to the register of copyrights," and it is provided (sec. 14): "That the postmaster to whom are delivered the articles deposited as pro- vided in sections eleven and twelve of this Act shall, if requested, give a receipt therefor and shall mail them to their destination without cost to the copy- right claimant." Franking labels are not required and are no longer issued by the Copyright Office. Deposit copies, and all mail matter, should be ad- dressed to the "Register of Copyrights, Library of Congress, Washington, D. C," and not to any person by name. Thus even if the deposit copies should not reach Loss in Washington, as in case they were burned in the mail, ""^i' 146 COPYRIGHT Foreign works Ad interim deposit the copyright proprietor can validate his claim by production of the postmaster's receipt in lieu of deposit copies. In respect to foreign works, it should be noted that "the original text of a work of foreign origin in a language or languages other than English," may be formally copyrighted and fully protected by regis- tration under the same formalities as domestic works except that the deposit copies need not be manu- factured within the United States, thus giving the author the exclusive right of translation. Copies published for use in America must of course bear the copyright notice. A translation into English from such text cannot be copyrighted unless the deposit copies of the English translation are manufactured within the United States; and this holds true also in respect to translations into a language other than English, as it is only "the original text" which can be copyrighted without American manufacture. In respect to books published abroad in the English language, ad interim protection is assured by the pro- vision (sec. 21) : "That in the case of a book published abroad in the English language before publication in this country, the deposit in the Copyright Office, not later than thirty days after its publication abroad, of one complete copy of the foreign edition, with a re- quest for the reservation of the copyright and a state- ment of the name and nationality of the author and of the copyright proprietor and of the date of publica- tion of the said book, shall secure to the author or proprietor an ad interim copyright, which shall have all the force and effect given to copyright by this Act, and shall endure until the expiration of thirty days after such deposit in the Copyright Office." On such works the provisional copyright is made permanent under the provision (sec. 22): "That FORMALITIES 147 whenever within the period of such ad interim pro- Completion tection an authorized edition of such book shall be «>f ad interim published within the United States, in accordance '"^^"8^* with the manufacturing provisions specified in section fifteen of this Act, and whenever the provisions of this Act as to deposit of copies, registration, filing of affidavit, and the printing of the copyright notice shall have been duly complied with, the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act." The ad interim provision requires the same for- malities and fee as in the case of domestic works, except that only one copy of the foreign work in English need be deposited, and that this deposit copy need not contain the statutory notice of American copyright. The claimant is given thirty days after publication abroad in which to request reservation and a second thirty days after deposit of the foreign copy within which to publish or cause to be published an edition manufactured in America and thus to complete his copyright. This gives a period of ad interim protection, ranging from thirty days to sixty days, within which to obtain permanent copyright, the exact period depending upon the number of days elapsing after publication before deposit of the foreign copy in the Copyright Office. Thus a copy deposited on the day of publication will have thirty days in all within which to secure permanent copy- right by the publication of the American-made edi- tion, while a copy deposited on the thirtieth day after publication will have sixty days in alf ; but the failure to deposit the foreign copy within thirty days after publication, or the failure to publish an American- made edition within thirty days after such deposit, will forfeit the right to obtain copyright protection and throw the foreign work into the public domain, 148 COPYRIGHT Omission of copyright notice Books only ad interim despite the ad interim registration. When an Ameri- can-made edition with notice of copyright can be pub- lished in America simultaneously with its publication abroad, ad interim protection is of course rendered unnecessary; and such simultaneous publication is the simplest and best practice for publishers to adopt. It may also be emphasized here that the notice of copyright can be omitted only from foreign-made copies and must be included in the American-made edition. The American publisher desiring to re- print a book published abroad in the English lan- guage within sixty days after publication, without consent of the copyright proprietor, must therefore assure himself, by inquiry from the Copyright Office, whether the work has been registered ad interim. The printing of an American copyright notice on the foreign edition in anticipation of the publication of an American-made edition and the deposit of copies thereof within the statutory requirements is a ques- tionable practice, as a failure to publish American- made copies in the United States, because of defec- tive publishing arrangements or a printers' or binders' strike, would make such notice a false notice of copy- right. The copyright term in the case of such for- eign work in the English language dates, it would seem, from the date of publication abroad rather than from the date of publication of the American-made edition ; but this would be of importance only toward the expiration of the original term and in connection with the renewal term. Ad interim protection seems to be confined ex- clusively to a book as such, and therefore does not apply to articles in periodicals. It should be noted that an American author pub- lishing his work abroad is not benefited by either of these provisions respecting foreign works. The pro- FORMALITIES 149 vision regarding works in other languages is sped- American fically confined to a work of foreign origin, that is, authors not not by an American author; and he gains nothing, if JggjgJ'"" his work is in English, from ad interim protection. Thus an American author publishing his work first in German in Berlin, must copyright and deposit an American-made edition of his German text in this country to obtain American protection, without which his work in German could be imported into this country without his consent, and an independent translation of his text into English and its publication in America could not be prevented. In view of the exact prescription of the method of Exact con- securing copyright, unless the statute is precisely fonnity re- complied with the copyright is not valid. Said Judge f^Jl^anyes Sawyer, in 1875, in Parkinson v. Laselle: "There is no possible room for construction here. The statute says no right shall attach until these acts have been performed; and the court cannot say, in the face of this express negative provision, that a right shall attach unless they are performed. Until the per- formance as prescribed, there is no right acquired under the statute that can be violated." And in the case of the play "Shaughraun," Boucicault v. Hart, in 1875, Justice Hunt held, as regards copyrights in general : "Two acts are by the statute made necessary to be performed, and we can no more take it upon ourselves to say that the latter is not an indispensable requisite to a copyright than we can say it of the former." The Supreme Court laid down this general doctrine in Wheaton v. Peters, in reference to the statutes of 1790 and 1802, and the later statutes are most explicit on this point. In the same case of Wheaton v. Peters, Justice McLean, in delivering the judgment of the Supreme Court, held that while the right "accrues," so that it may be protected in 150 COPYRIGHT chancery, on compliance with the first requirement of the prescribed process, it must be perfected by complying with the other requisites before a suit at law for violation of copyright can be maintained. Expunging A false or unjustifiable entry of copyright may be from registry expunged from the registry by court order, as was done in the English case Re Share Certificate Book in 1908. British for- The statutory formalities of copyright in other maUties countries vary greatly. In Great Britain copyright has been secured by first (or simultaneous) publication within the British dominions or under the "interna- tional copyright act." The law provided that a copy of the best edition of a book must be deposited in the British Museum, this giving basis for proof of pub- lication, which deposit must be made within one month after publication if published within London, three months elsewhere in the United Kingdom, and one year in other parts of the British dominions; the failure to deposit did not forfeit copyright, but in- volved a fine ; but under the international copyright provisions, deposit in the British Museum of a colo- nial or foreign work was not required, though useful as prima facie evidence of publication. Four other copies of domestic books must be supplied to the uni- versities of Oxford, Cambridge, Edinburgh and Dublin if demanded within twelve months from publication. Registration at Stationers' Hall was necessary for books only as a prerequisite to an action at law against infringement, but was obligatory in the case of paint- ings, drawings and photographs. Copyright notice on a book was not required except to reserve the right of representation of a dramatic work, etc., though it has been customary for English publishers to print the phrase "All rights reserved" as the equivalent to the copyright notice. But copyright notice was re- FORMALITIES 151 quired to protect sculpture, engravings and musical compositions and in respect to oral lectures. The new British code bases copyright for all pub- The new lished works on first publication within "the parts of British code His Majesty's dominions to which this Act extends" or as provided for in colonial or international ar- rangements — copyright of unpublished works de- pending upon British citizenship or residence at the time of making. Delivery of copies to the British Museum and on demand to the other libraries is re- quired from the publisher of every book published in the United Kingdom, but on penalty of five pounds and the value of the book and not of forfeiture of copyright. The National Library of Wales is entitled to a sixth copy, in prescribed classes of books. Regis- tration is no longer made a condition or circumstance of copyright. Most of the British colonies have followed the pre- cedent of the mother country, with slight variation, in their domestic legislation. Canada and Newfound- land, following the precedent of the United States, require copyright notice in statutory form. France requires deposit of two copies upon publi- other cation, and registration is required prior to a suit for countries infringement. Germany requires the registration of the name of the author of anonymous or pseudony- mous works as the condition for copyright, but other- wise grants copyright practically as natural right without requiring formalities. The greater number of copyright countries do not impose any formalities except for specific privileges as the right of transla- tion, of representation or of reproduction in the case of periodical contributions; or for special subjects as works of art, musical compositions, telegraphic messages, where these are protected, and oral lec- tures. Deposit of copies is, however, generally re- 152 COPYRIGHT quired, either before putting the book on the market or before circulation, or upon publication, or else within a specified time after publication, ranging from ten days in the case of Greece to two years in the case of Brazil, while in several countries no specific time is mentioned. In Italy, if no deposit of a regis- tered work is made within ten years, the copyright is considered to be abandoned. The number of copies required varies in the several countries from one to six. In some countries specific formalities are re- quired to establish the beginning of the term of pro- tection for collective or posthumous works, etc., or in connection with the disclosure of the author's name on anonymous or pseudonymous works. Spain, Co- lombia and Panama, and Costa Rica have a curious provision that if a work is not registered within one year from publication the copyright is forfeited for ten years, at the end of which period it may be re- covered by registration. Canada and Newfoundland, following the United States precedent, Australia, Holland and the Dutch colonies, and Siam require manufacture within the country. In several countries penalty for failure to deposit is provided, the limit being usually the value of a book and a sum not ex- ceeding £5, or in France 300 francs. The deposit of a photograph or sketch of a work of art is in many countries required for purposes of identification. Inter- International copyright throughout the countries national of the International Copyright Union and the Pan provisions American Union, if the Berlin and Buenos Aires con- ventions are ratified throughout, will depend, as now it depends for most countries, entirely on the formali- ties in the country of origin. THE AMERICAN MANUFACTURING PROVISIONS In the American law of 1891, embodying the "inter- Manufactur- national copyright amendment" which for the first ing proviBion time permitted the copyright in the United States ''^ of works by foreign authors not resident in this coun- try, the copyright of books was conditioned on the manufacture within the United States, and this condition was made appHcable also to American authors. The American code of 1909 follows this precedent Text in 1909 in making manufacture within the United States a *"** sine qua non of copyright for printed books and peri- odicals, lithographs and photo-engravings, under the following provision (sec. 15), commonly cited as the manufacturing provision: "That of the printed book or periodical specified in section five, subsections (a) and (b) of this Act, except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protec- tion under this Act, except as below provided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photo-engraving process, then by a pro- cess wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States; which requirements shall extend also to the illustrations within a book consisting of 154 COPYRIGHT Scope and exceptions Changes 1891-1909 printed text and illustrations produced by litho- graphic process, or photo-engraving process, and also to separate lithographs or photo-engravings, ex- cept where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art; but they shall not apply to works in raised characters for the use of the blind, or to books of foreign origin in a language or languages other than English, or to books published abroad in the English language seeking ad interim protection under this Act." This manufacturing provision requires that every "book" except the original text of a book of foreign origin, i. e., not by an American writer in a language or languages other than English, or a book published abroad in the English language seeking ad interim protection, or a book in raised characters for the use of the blind, can obtain American copyright whether by an American or foreign author, only in case the type is set, the plates made and lithographic or photo- engraving text or illustrations produced and the work printed and bound within the limits of the United States — inclusive, presumably, of the outlying de- pendencies. The provision extends to periodicals, though these are not subjected to the affidavit clause, and periodicals containing authorized copyrighted material are not prohibited from importation. The provisions extend also to lithographs or photo-engrav- ings, issued separately as well as for book illustration, unless these represent foreign subjects or illustrate a scientific work or reproduce a work of art. The provision of 1909 differs from the provision of 1 89 1 in requiring that a book should be from plates type-set as well as made, and be printed and bound, within the United States, in adding periodicals and by omitting photographs and dropping the word MANUFACTURING PROVISIONS 155 chromo, and including photo-engravings as well as lithographs. The inclusion of binding in the manu- facturing provision met with especial opposition, on the ground that binding is not an integral part of, but an incidental addition to, a completed book. The effect of these provisions, to cite specific in- Gennan- stances, is that an original German text by a non- American American author is exempt from the manufacturing "'^ ''^^ provisions, but that a French translation or an Eng- lish translation is not, and that an original German work by an American author must be manufactured in this country to obtain protection, and that the American author printing his work in English abroad may claim od interim protection but can obtain no substantial benefit from it. In case a German-Ameri- can citizen, or German resident of this country, writes a book in the German language and prints it first in Berlin, he can have no American copyright in the German edition ; and if copies of such an edition, without copyright notice, should reach the United States previous to manufacture and publication of the work here, any one would have the right to re- print it, and the work would be practically dedicated to the public, while the copyright notice could not be affixed to such foreign printed edition without viola- tion of the law. If, however, the German work were a translation made by or for the author of a work written in English, the general copyright of the Eng- lish work would cover the German edition, but the German copies could not then be imported. A drama copyrightable as such under subsection Dramas (d) is not subject to the manufacturing provision, excepted unless classified as a book under subsection (a). A printed drama was held not to be subject as a book to the manufacturing provision in Hervieu v. Ogilvie, in the U. S. Circuit Court, by Judge Martin 156 COPYRIGHT Exception of foreign origi- nal texts Exception of foreign illus- trative sub- jects AfiSdavit requirement in 1909, and this decision under the old law is appli- cable to the new code. The exception of "the original text of a book of foreign origin in a language or languages other than English," — drafted by the author of the present volume, introduced at the instance of the American (Authors) Copyright League, as the McCall bill with the assent of the representatives of the typographical unions responsible for the manufacturing provision, — was included to assure a real reciprocity in copy- right with continental and other non-English na- tions. The exception is repeated toward the close of the section in the somewhat wider phrase "books of foreign origin in a language or languages other than English," which omits restriction to "the original text"; but it is probable that the second phrasing would be construed in conformity with the first, as the evident intention of the law. The exception from lithographs and photo-en- gravings of subjects which "are located in a foreign country and illustrate a scientific work or reproduce a work of art" is intended to permit the importa- tion, either separately or for book use, of direct re- productions made abroad of scenes or objects which otherwise could be reproduced in this country only indirectly and at second-hand; the confusing and probably careless use of the word "and " might seem to exclude from the exemption a lithograph or photo- engraving of a natural scene, illustrating a work of travel, but the courts might here feel justified in tak- ing the more liberal view. To the manufacturing provision of the previous law has been added a new affidavit requirement (sec. 16) as follows: "That in the case of the book the copies so de- posited shall be accompanied by an affidavit, under MANUFACTURING PROVISIONS 157 the official seal of any officer authorized to administer oaths within the United States, duly made by the person claiming copyright or by his duly authorized agent or representative residing in the United States, or by the printer who has printed the book, setting forth that the copies deposited have been printed from type set within the limits of the United States or from plates made within the limits of the United States from type set therein; or, if the text be pro- duced by lithographic process, or photo-engraving process, that such process was wholly performed within the limits of the United States, and that the printing of the text and binding of the said book have also been performed within the limits of the United States. Such affidavit shall state also the place where and the establishment or establishments in which such type was set or plates were made or lithographic process, or photo-engraving process or printing and binding were performed and the date of the comple- tion of the printing of the book or the date of publi- cation." In preparing the affidavit, which is necessary for Avoidance books only, the applicant should be careful to note "^ errors the following points, as to which errors are commonly made. The affidavit should correspond exactly with the application (as that with the title-page or other data in the work itself) . The affidavit cannot be made till after publication and must state the exact day of publication or the date of completion, either or both, which last means not necessarily the completion of printing the whole edition, but of the deposit copies. The affidavk-must be taken and signed by an indi- vidual, not by a corporation, company or firm as such, and the affiant must state whether he is the claimant, agent of the claimant, or printer, striking out the other designations. The name of the printer 158 COPYRIGHT and binder must be given in the affidavit with city and state (but not street) address; but this means the printing and binding establishment and not the individual type-setter or binder. If the book is not bound but only issued in paper, the word "unbound " should be written into the affidavit. It is necessary to give the venue, that is, the county and state in which the affidavit is made, and to take the oath before a notary or other official authorized to take such oath in that locality (not merely a justice of the peace). The affiant's and notary's names should be signed exactly as written into the body of the affi- davit, and the seal should correspond exactly with the name of the official and the venue. The signature of the affiant and of the notary and the seal are all necessary to validate the affidavit. The names and other writing should be written plainly, and the affiant should make sure to read the affidavit and compare it with the application and with the book. Forfeiture by In case of false affidavit, forfeiture of copyright is false aflfidavit provided (sec. 17) as follows: "That any person who, for the purpose of obtain- ing registration of a claim to copyright, shall know- ingly make a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited." Exact com- The affidavit clause is exact and specific. It may pliance ]-,£ made either by the printer or the publisher. This necessary exacting and drastic addition to the manufacturing clause met with strong opposition from the friends of copyright, particularly authors and book publishers, as unnecessary and unreasonable, but was successfully insisted upon by the representatives of the typo- MANUFACTURING PROVISIONS 159 graphical unions. The voiding of copyright because of a false affidavit by a printer or publisher, which might even be mistakenly made and of which the author would have no cognizance, was opposed as especially unjust to authors and out of keeping with the rest of the law. Under the statute as enacted, this provision must be exactly complied with, and the courts would doubtless enforce it to the letter. The manufacturing provision of 1 891 and its ex- importation tension in the code of 1909 have raised important and questions difficult questions as to the time at which these pro- visions become effective in relation with copyrights previously existing. It was claimed by Benziger Brothers, as proprietors of a copyright American edi- tion of the " Key of Heaven," that an edition of sheets printed in America previous to the law of 1909 and sent abroad for binding, could be reimported not- withstanding the new provision against binding, but the decision of the appraisers at New York against this claim was upheld by the Secretary of the Treas- ury, under advice of the Attorney- General, and the courts have not yet had occasion to pass on the ques- tion. This ruling indicates that since July i, 1909, copyright could not be maintained on any book unless type-set, printed and bound completely within the limits of the United States, and that any copyrighted books, partly manufactured in the United States, but bound and otherwise completed abroad since July 1 , 1909, must be denied importation. It has been decided, however, by the Attorney-General, that the manufacturing requirement as to binding refers only to the original, and that copyright books rebound abroad cannot be denied importation. Also it has been held that a foreign translation of a copyright work, for which translation American copyright is not claimed, cannot be refused importation. i6o COPYRIGHT Foreign man- ufacturing provisions The provisions supplementing the manufacturing clause by prohibiting importation are given in the chapter on importation. Holland is the only country in Europe which re- quires that the deposit copies shall be printed within the country and thus makes manufacture a condi- tion of copyright — an inheritance probably from the times when the printer-publishers of the Prot- estant Netherlands were the only ones printing the books barred in Catholic countries by the index ^ ex- purgatorius, and when deposit was naturally required from them. The law covered the Dutch West Indies, and the precedent was followed in Siam ; and in the Transvaal and Orange State the Dutch law continued after they had become English colonies. Otherwise than in these countries, only the British dominions of Canada and Newfoundland and the Commonwealth of Australia have manufacturing provisions. Canada made such provision as to domestic copyright in 1886 and again in the act of May 2, 1889, which last pro- vides that a literary, scientific, musical or artistic work shall, before or simultaneously with publication or pro- duction elsewhere, be registered in the office of the Minister of Agriculture, and be printed or published or produced in Canada within one month after publica- tion or production elsewhere. Newfoundland in its statute of 1892, following our own of 189 1, provided similarly that the condition for obtaining copyright shall be that the literary, scientific or artistic work shall be printed and published or produced in this colony. Australia, under the new code of 1905, confines domestic copyright to books (inclusive of drama) " printed from type setup in Australia, or plates made therefrom, or from plates or negatives made in Aus- tralia in cases where type is not necessarily used," and in an artistic work to those " made in Australia." MANUFACTURING PROVISIONS i6i Unfortunately, the precedent of our copyright act English of 1 89 1 has since been followed in England in the Patent patent and designs act of 1907, which provides (sec. P'*"'^" 27) that a patent may be revoked after four years "on the ground that the patented article or process is manufactured or carried on exclusively or mainly outside the United Kingdom." Such a provision had been a feature of the patent laws of Germany, Can- ada and other countries, but it is new in British law and has evoked strong protest from American pat- entees, notwithstanding that it is parallel with our manufacturing provision with respect to copyrights. XI Dramatists' and com- posers' rights American provisions Copyright Office definitions DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING PLAYRIGHT The dramatic author and the musical composer re- ceive recompense for their creative labor not so much from publication of their works in the printed form of a book as through their performance or represen- tation, when protected as playright or performing right, as the artist receives remuneration not only for the reproduction and sale of copies, but also from the exhibition as well as sale of his original work. Dramatic and musical copyright, in the wide sense, therefore, covers copyright in the specific sense and playright, as to which latter common law rights es- pecially need statutory protection. In the protection of dramatic and musical compo- sitions the new American code specifically provides not only for copjright, but for playright or right of performance. Under subject-matter of copyright (sec. 5) such works are classified as " (d) Dramatic or dramatico-musical compositions ; (e) Musical com- positions " ; and the Copyright Office Rules and Regu- lations further define these classes as follows: "8. {d) Dramatic and dramatico-musical composi- tions, such as dramas, comedies, operas, operettas and similar works. " The designation 'dramatic composition' does not include the following : Dances, ballets, or other chore- graphic works ; tableaux and moving picture shows ; stage settings or mechanical devices by which dra- matic effects are produced, or ' stage business ' ; animal DRAMATIC AND MUSICAL 163 shows, sleight-of-hand performances, acrobatic or circus tricks of any kind ; descriptions of moving pic- tures or of settings for the production of moving pic- tures. (These, however, when printed and published, are registrable as 'books.') "9. Dramatico-musical compositions include prin- cipally operas, operettas, and musical comedies, or similar productions which are to be acted as well as sung. "Ordinary songs, even when intended to be sung from the stage in a dramatic manner, or separately published songs from operas and operettas, should be registered as musical compositions, not dramatico- musical compositions. " 10. (e) Musical compositions, including other vocal and all instrumental compositions, with or without words. "But when the text is printed alone it should be registered as a ' book,' not asa ' musical composition.' " To dramatic and musical authors are given (sec. l) Rights in addition to the general right, granted in subsec- assured tion " (a) To print, reprint, publish, copy and vend the copyrighted work," the specific exclusive rights: "(b) ... to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-drama- tic work if it be a drama ; to arrange or adapt it if it be a musical work; ... "(d) To perform or represent the copyrighted Dramatic work publicly if it be a drama or, if it be a dramatic "6^*^ work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcrip- tion 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 re- produced ; and to exhibit, perform, represent, produce. 164 COPYRIGHT^ Musical rights Excepted perfoimance or reproduce it in any manner or by any method whatsoever ; "(e) To perform the copyrighted work pubHcly 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"; — to which provision of subsection (e), in respect to copyright control of mechanical records, are added provisos that such control shall not extend to com- positions published and copyrighted before July I, 1909, and works of foreigners whose state does not grant similar right to American citizens, and shall be subject to compulsory license arrangements, requiring that if the author permits any mechanical reproduc- tion, he shall license any manufacturer under condi- tions stated in detail in the act, all of which exceptions and conditions are fully stated in the chapter on mechanical music provisions. An exception to these exclusive rights is, however, made in the proviso (sec. 28) "Provided, however: That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs, or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charitable or educational purposes and not for profit." This proviso is singularly defective in phraseology, as the phrase "octavo choruses" has no musical sig- nificance and uses a music-trade term to designate DRAMATIC AND MUSICAL 165 choruses usually but not necessarily published in oc- tavo form; and the duplication of the words " public school," etc., is probably a verbal error in the bill which mistakenly became part of the law. The pro- viso is doubtless intended and would fairly be con- strued to permit gratuitous unauthorized performance of religious or secular works such as oratorios, can- tatas, masses, and choruses by public schools, church choirs, school choirs or vocal societies, from copies rented, borrowed, or obtained from some public library, provided the performance is given for chari- table or educational purposes and not for profit. Curiously the letter of the proviso would seem to pro- vide that the beneficiary organization cannot per- form from a purchased copy, but only from copies rented, borrowed or "obtained from" some public source ; but this also is an evident error. It should be noted that the omission from subsec- Perfonnance tion (d) as to drama and the inclusion in subsection fo' profit" (e) as to music, of the words "for profit," — doubtless with the intent of assuring to the individual pur- chaser of music the right to perform it privately, — have significance here, and serve, it would seem, to give the dramatic author absolute control even over gratuitous performances and to limit the control of the musical author to performances which are not gratuitous, a negative provision covering, and giving much wider latitude than, the proviso (sec. 28) above cited. But as dramatico-musical compositions are classified (sec. 5, d) with dramatic compositions, and an oratorio and possibly a cantata might be consid- ered as a dramatico-musical composition, the proviso (sec. 28) may have a specific effect as to this kind of dramatico-musical compositions. The law is unfor- tunately defective and confusing by reason of this proviso and will be so difficult of judicial construe- 1 66 COPYRIGHT Works not reproduced Copyright notice Dramatico- musical works pro- tected from mechanical reproduction tion as to suggest the omission, by amendment, of this proviso. The use of the word "public" in both cases implies that the author cannot control private representation and opens other questions difi&cult of judicial interpretation. It is provided (sec. ii): "That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be ... a dramatic or musical composition"; pro- vided that the required deposit of two copies shall be made, as in the case of books, on publication there- after by the multiplication and public sale or dis- tribution of copies. The notice of copyright must be printed (sec. i8) on each copy, as in the case of a book in the form "Copyright" or the abbreviation "Copr.," "accom- panied by the name of the copyright proprietor" and "the year in which the copyright was secured by publication." In the case of a published dramatic work the notice must be placed, as in the case of a book, upon the title-page or the page immediately following, but in the case of a published musical work the law provides that the notice "shall be applied . . . either upon its title-page or the first page of music," and this specification makes the copyright notice of doubtful validity if applied in a musical work on the page following the title-page, unless this is the first page of music. The classification of dramatico-musical composi- tions under subsection (d) as dramatic works and not under subsection (e) as musical compositions, defines an opera and possibly an oratorio or cantata as a dramatic rather than a musical composition. As the dramatic author is given (sec. i, d) the comprehen- sive rights over reproduction "in any manner or by DRAMATIC AND MUSICAL 167 any method whatsoever" while the musical author is limited (sec. I, e) in respect to mechanical reproduc- tions, it would seem to follow that the author of an opera may retain absolute control over mechanical reproduction, as the author of a non-musical drama retains absolute control over phonographic or other reproduction of his drama. This would seem to con- fine the requirements that the author of a musical composition permitting mechanical reproduction should license any manufacturer, to musical compo- sitions which are not dramatic, i. e., to instrumental compositions or to songs and other vocal music not associated with drama. As an overture to an opera is an integral part of the dramatico-musical compo- sition, it would even seem that an overture which is part of an opera, or possibly an orchestral introduction or interlude in an oratorio or cantata, would not be subject to the mandatory license provided as to musi- cal compositions. But this question has not yet come before the courts. Dramatic and musical works are not mentioned Dramatic in the manufacturing and affidavit provisions (sees, and musical 15, 16, 17) which are specifically confined to "the ceptedfrom printed book or periodical specified in section 5, manufactur- subsections (a) and (b)," while dramatic and musical tagP'ovi- compositions are classified in subsections (d) and (e). It might be alleged that dramatic or musical com- positions in book form or produced as books from type or by lithographic or photo-engraving process should be classified as books and subjected to the manufacturing provisions; but this is distinctly not the letter of the law. This exception was specifically upheld for music in the case of Littleton v. Ditson in 1894, by Judge Colt in the U. S. Circuit Court in Mcissachusetts, where the defense that there was no copyright in certain songs because the music sheets I68 COPYRIGHT British colonial practice Entry under proper class Applications and certifi- cates were not from type set or plates made within the United States, was overruled; and for drama in Her- vieu V. Ogilvie in 1909, where in the U. S. Circuit Court in New York, Judge Martin cited with approval Judge Colt's decision. This ruling was also embodied in Treasury decision No. 21012 of April 17, 1899, per- mitting the importation of musical compositions copy- righted in the United States and printed abroad. The Australian law, on the contrary, specifically includes under the definition of "book," a "drama- tic work" and a "musical work," and thus subjects both to the manufacturing clause. Printing and pub- lishing are required in Canada ("within one month after publication or production elsewhere") and in Newfoundland to obtain copyright under the local acts; and as drama is not mentioned but included generically as a book or literary composition, and music is specifically included, both dramatic and musical compositions must be manufactured within each country to obtain local, as distinguished from British or Imperial, protection. The author of a dramatic, dramatico-musical, or musical composition should therefore be careful to make application in the United States under class (d) or (e) and not as a book under class (b). The fact that the law classifies under subsection (d) dramatic or dramatico-musical compositions and under sub- section (e) musical compositions, has caused the Copyright Office to prepare separate application forms and certificates for (D^) a dramatic composition, (D') a dramatico-musical composition and (E^ a musical composition, "published"; as also for (D*) a dramatic composition (or a dramatico-musical composition) and (E") a musical composition, "not reproduced for sale." It would seem advisable there- fore that the author of an opera, oratorio or the like, DRAMATIC AND MUSICAL 169 to obtain the fullest protection under the law, should enter such work in class (d) as a dramatico- musical composition rather than in class (e) as a musical composition, and thus safeguard himself against the mechanical music proviso applied exclu- sively to class (e). In regard to dramatization, the new American code Right of is specific (sec. i, b) in giving to the author of an dramatiza- original work the exclusive right "to dramatize it if *'°° it be a non-dramatic work" or "to convert it into a novel or other non-dramatic work if it be a drama." The relations of a maker of a dramatic version of a literary work or of a literary version of a dramatic work, would follow the same rule as in the case of a translator. An author has the exclusive right to dramatize or permit the dramatization of his work, and the dramatization may be copyrighted in the name of the original author or of the dramatizer, but the dramatizer cannot prevent another dramatization of the same work unless by transfer of exclusive right from the original author. The specific copyright on a published dramatiza- Dramatiza- tion dates from the publication of the dramatization, tionterm which may extend the protection of the dramatiza- tion beyond the copyright term of the original work. But on the expiration of the copyright in the original work rival dramatizations can no longer be prevented. All this holds true as to the novelization of a drama. In respect to music, the language of the law (sec. i , Musical ar- e) is thoroughly comprehensive in covering the ar- rangements rangement or setting of a musical composition or of a melody in any notation or in any form whatever. This gives to the musical author entire control over the use of any part of his work, as for instance the transcription from an orchestral work for piano use, the instrumentation of a vocal work or the use for a 170 COPYRIGHT Copyright Office definitions Transposi- tion Works in the public domain Dramatiza- tion right protected by courts song of any melody in an orchestral work. On the other hand, variations, transcriptions and so forth of a copyrighted work, made under authorization from the copyright proprietor, may be separately copy- righted as to that extent original works. The Copyright Office Rules and Regulations say specifically: "(lo) 'Adaptations' and 'arrangements' may be registered as ' new works ' under the provisions of section 6. Mere transpositions into different keys are not expressly provided for in the copyright act; but if published with copyright notice and copies are deposited with application, registration will be made."- In Hein v. Harris in 1910, the U. S. Circuit Court awarded damages where the chorus of a song proved on transposition into the key of the copyright song to be practically a copy of the melody. It is specifically provided (sec. 6) that "adapta- tions, arrangements, dramatizations ... or other versions of works in the public domain, . . . shall be regarded as new works subject to copyright," and in the case of such versions copyright inheres in the dramatizer, adaptor or maker of a version, as in the case of a translator of a book, in the public domain. Thus a dramatic or musical work in the public do- main may be dramatized or adapted freely and any individual dramatization or adaptation may be copy- righted by the dramatizer or adaptor, but he cannot prevent other dramatization or adaptation of the same work. The American courts have fully upheld the control over dramatization under the right "to dramatize" specifically given in the law of 1891 and preserved under the new code. In 1895 in Harper v, Ranous, Judge Lacombe, in the U. S. Circuit Court in New York, enjoined a play, "Trilby," on the ground that the drama "presents characters, plot, incidents, DRAMATIC AND MUSICAL 171 dramatic situations and dialogue appropriated from Du Maurier's copyrighted novel," while denying pro- tection against the mere use of the title. In the same year and in respect to the same novel, in Harper v. Ganthony, the Harpers, as owners of the copyright of "Trilby," also obtained from Judge Lacombe an injunction against Miss Ganthony, who had presented at the Eden Mus6e a series of monologues in costume following the plot of the story, which the judge held to constitute a dramatic version and therefore an infringement. A story, "The transmogrification of Dan," purchased by the Smart Set for $85, copy- righted as part of that periodical and assigned back to the author, was dramatized by Paul Armstrong and produced by the defendants under the name of "The heir to the Hoorah," retaining the central incident of the story, though with modification and extension of the characters, situation and dialogue. In 1908 Judge Hazel, in Dam v. Kerke La Shelle Co., in the U. S. Circuit Court in New York, awarded the full profits from the dramatic representation as damages to the executor of Dam, the author of the story; which deci- sion was fully upheld in 19 10 by the Circuit Court of Appeals through Judge Noyes. Thus the new Ameri- can code specifically enacts into statute law previous decisions of the American courts. Under English law, on the contrary, the right of English law dramatization has not been included under copyright; ^^ practice the mere copyrighting of a book could not prevent its dramatization, but the copyrighting of a work in dramatized form before its publication as a novel practically prevented other dramatization of the lit- erary work in so far as the one drama was a reproduc- tion of the features of the other. As stated by Colles and Hardy in their recent work (1906) on " Playright and copyright in all countries," "a novel is not a 172 COPYRIGHT The new British code Infringe- ment cases dramatic piece, ready and fit for representation on the stage. Consequently, the author of a novel has the copyright in his book, but he has no playright according to English law." The general principles were best stated in 1874 by Chief Justice Cockburn in Toole v. Young, where Grattan's drama "Glory" was declared not to be an infringement either of Hollingshead's novel "Not above his business," on which it was confessedly founded, nor of the dramatic version made under the title of "Shop" by Hollings- head himself, but never printed or performed and therefore unpublished: "Two persons may dramatize the same novel, for that is common property. It is true that a writer cannot produce and represent a drama, which he has borrowed from a drama written previously by another person; he would then be re- presenting the production of the first dramatist. . . . I wish to guard myself against being supposed to lay down that, if a writer, while dramatizing a novel, takes the incidents, characters, and dialogue of a previous drama founded upon that novel, and repro- duces what is in substance identical with the previous drama, there might not be an infringement of the right of the earlier dramatist if the later drama be represented on the stage." The new British measure remedies this defect by specifically including the sole rights to convert a novel or other non-dramatic work, or an artistic work, into a dramatic work, by way of performance in pub- lic or otherwise, and to convert a dramatic work into a novel or other non-dramatic work. A curious early case was that of Reade v. Conquest in 1862, in which the son of Charles Reade had made and sold to the defendant, who produced it at his theatre, a dramatic version of " It is never too late to mend" in ignorance of the fact that his father had DRAMATIC AND MUSICAL 173 first written a play called "Gold " and had then trans- formed that into the novel ; in this the defendant was enjoined because the version which he produced infringed the earlier play. In Beereu. Ellis in 1889, Baron Pollock enjoined a rival dramatic version of "As in a looking glass " on the ground that while bits of dialogue, presumably copied into the defendant's version, were scarcely substantial, yet a special situa- tion founded on a new incident not in the novel and certain stage business connected with the death of the heroine constituted an infringement. In 1890, in Schlesinger v. Turner, the executors of Wilkie Collins obtained an injunction against a rival dramatic ver- sion of "The new Magdalen," the judge holding that although the defendant's version had not been copied from the author's own play, it was substantially simi- lar and therefore an infringement. That an independ- ent and different dramatic version can, however, be made, was specifically held in the case of Schlesinger V. Bedford in the same year, when Collins's executors failed to obtain an injunction against the defendant's rival dramatic version of "The woman in white," although the novelist himself had previously drama- tized his work, the judge holding that the two plays were "essentially different." But the use in a play of considerable portions of a Use of sub- copyrighted novel would be an infringement. That a stantial dramatization using substantial parts of a novel in- '™ fringes the novel, was definitely established in 1863 in Tinsley v. Lacy, where the proprietor of Miss Brad- don's "Lady Audley's secret" and "Aurora Floyd" obtained an injunction against a bookseller who sold dramatizations under the same titles of which a quar- ter or more of the text was taken bodily from the novels. So in 1888 an injunction was obtained from Judge Stirling, in Warne v. Seebohm, in the Court of 174 COPYRIGHT specific scenes or situations What is a dramatic composition Chancery, against a dramatization of "Little Lord Fauntleroy " which copied from the novel beyond the limits of fair use and was therefore considered a "copy" from the work. Where in dramatizing a novel, the dramatic author invents and introduces new scenes, situations or other features, the copying of such added features into an- other dramatic version of the novel, otherwise inde- pendent, constitutes an infringement of the original play. In the case of Nethersole v. Bell in 1903, with respect to rival English dramatic versions of Daudet's "Sapho," it was held that while there might lawfully be independent dramatizations of the novel, the cir- cumstances indicated that the Espinasse version of the defendant, said to have been written in Australia, had been so modified consequent to representation of Clyde Fitch's version, as to constitute an infringe- ment of the plaintiff's rights. In Tree v. Bowkett in 1896, plaintiff obtained an injunction against the use by the defendant in a rival dramatic version of "Trilby" because of two scenes introduced by the plaintiff into his drama which were not in the novel or in the American dramatization. On the other hand, in Chatterton v. Cave in 1876, where the plaintiff had dramatized Eugene Sue's "The wandering Jew" and added two scenes not in the novel, an injunction was denied by Lord Chief Justice Coleridge against an independent dramatization, though it had included similar scenes, on the ground that these were not sufficiently substantial and material in the play to constitute an infringement. And this application of the principle of de minimis non curat lex was af- firmed by the House of Lords in 1878. As to what is a dramatic composition or represen- tation, no definition is given in the American law, and the English laws of 1833 and 1842, quoted beyond, DRAMATIC AND MUSICAL 175 are not explicit. Both English and American courts have therefore been obliged to make or to extend definitions, but the decisions have been somewhat confusing. The most explicit general statement is that made by Judge Blatchford in discussing Daly judge V. Palmer in 1868: "A composition, in the sense in Blatchford's which that word is used in the act of 1856, is a written "P""""* or literary work invented or set in order. A dramatic composition is such a work in which the narrative is not related, but is represented by dialogue and action. When a dramatic composition is represented in dialogue and action by persons who represent it as real by performing or going through with the various parts or characters assigned to them severally, the composition is acted, performed, or represented; and if the representation is in public, it is a public repre- sentation. To act in the sense of the statute is to re- present as real by countenance, voice, or gesture that which is not real. A character in a play who goes through with a series of events on the stage without speaking, if such be his part in the play, is none the less an actor in it than one who, in addition to mo- tions and gestures, uses his voice. A pantomime is a species of theatrical entertainment, in which the whole action is represented by gesticulation without the use of words. A written work consisting wholly of directions, set in order for conveying the ideas of the author on a stage or public place by means of charac- ters who represent the narrative wholly by action, is as much a dramatic composition designed or suited for public representation as if language or dialogue were used in it to convey some of the ideas." In a recent case of Barnes v. Miner in 1903, where judicial an injunction was asked against a vaudeville change definitions artist who had combined songs in costume with a cinematograph representation of scenes in the dress- 176 COPYRIGHT ing room during the changes, Judge Ray, in the U. S. Circuit Court in New York, declined to grant relief, adding that as a mere spectacular composition such "sketch" was not properly a dramatic composition. The English law was construed in 1848 in Russell v. Smith, when a song "The ship on fire," in which dramatic action Wcis exhibited by the singer alone without costume or scenery, while seated at the piano, was construed to be a "dramatic piece" — the action being "not related but represented." In 1872, in Clark v. Bishop, a music hall song "Come to Peck- ham Rye" was similarly protected as a "dramatic piece." But in 1895, in Fuller v. Blackpool Winter Gardens Co., it was held that the song " Daisy Bell," though sung in character costume, was not a "dra- matic piece" because its representation did not require acting or dramatic effect. Later decision con- strued the act of 1833 to cover only spoken words, the English Court of Appeal holding in Scholz v. Amasis in 1909, through Lord Chief Justice Farwell, that only substantial copying of written dialogue, and not of a plot or situation, constitutes infringe- ment, and in Tate v. FuUbrook in 1908, that the writer of the dialogue is the sole author of the musical sketch though devised and staged by another. But in two cases, one by Moore in 1903 and one by Eraser in 1905, against George Edwardes, English juries gave heavy damages where the scenarios for musical come- dies submitted to that theatrical manager had been made the basis for musical comedies by other writers afterward produced at Daly's Theatre, London. Moving pic- The opinion of Judge Blatchford was quoted and tares maybe followed by the U. S. Circuit Court of Appeals in New mente*" York, in 1909, in Harper v. Kalem Co., which said through Judge Ward: "The artist's idea of describing by action the story the author has written in words is DRAMATIC AND MUSICAL 177 a dramatization. It is not necessary that there should be both speech and action in dramatic performances although dialogue and action usually characterize them." In this case the defendants had caused per- sons to represent the action in certain scenes of " Ben Hur" and photographed this representation on a moving picture film, which they reproduced for sale to theatoriums, where public exhibitions were given for profit. The court held under the old law that "moving pictures would be a form of expression infringing the author's exclusive right to dramatize his writings and publicly to perform such dramatiza- tion." The contrary view was held in the English case of Karno v. Path6 Fr^res in 1908, where also the Court of Appeal held, in 1909, that not the manu- facturer but the exhibitor of such a film would be the responsible party if there were infringement. The doctrine that copyright does not depend on Literary literary merit, was strengthened in a dramatic case in °^^"* ^°* Henderson v. Tompkins in 1894, in the U. S. Circuit Court in Massachusetts by Judge Putnam, who held that a paraphrase of " I wonder if dreams come true," from " Ali Baba," constituted an infringement, though the offending piece had slight literary merit. As to what is a musical composition, the term de- What is a fines itself. But the phrase " dramatico-musical com- dramatico- positions," as used in the American code, bristles with ^^position perplexities, not altogether solved by the definitions of the Copyright Office Rules, above cited. It means, of course, music and drama in association, but in this combination the definition of the dramatic side is peculiarly difficult. Whether a dance, ballet or other choregraphic work, with or without music, is included, is a mooted question. In 1892, in Fuller :;. Bemis, where the plaintiff sought to protect a skirt dance of which she had filed a description for copyright as a 178 COPYRIGHT dramatic composition, Judge Lacombe, in the U, S. Circuit Court in New York, held that: " It is essential for a dramatic composition to tell some story. The plot may be simple, it may be but the representation of a single transaction; but it must repeat or mimic some action, speech, emotion, passion, or character, real or imaginary. A series of graceful movements, combined with an attractive arrangement of drapery, lights, and shadows, telling no story, portraying no character, de- picting no emotion, is not a dramatic composition." This view is adopted in the Copyright Office Rules and defines accepted American practice, but is not consonant with English and international views. The new The new British measure is definitely comprehen- Britishcode gjyg j^j^^j specific in including as a dramatic work " any piece for recitation, choreographic work or enter- tainment in dumb show the scenic eirrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrange- ment or acting form or the combination of incidents represented give the work an original character." Protection of It is evident that the methods for securing copy- playright right for published dramatic and musical works are in general the same, with exceptions noted in this chapter, as for literary works, that is, publication with copyright notice and registration with deposit promptly after publication of two copies of the best edition then published, with a fee of one dollar. Copyright in the specific sense is, however, of less importance to the dramatic or musical author, as has already been pointed out, than playright or perform- ing right, which is also covered and protected speci- fically by the code of 1909, though in less accurate, definite and satisfactory provisions, involving in some respects serious questions. The right at common law or in equity to prevent the copying, publication or DRAMATIC AND MUSICAL 179 use of an unpublished work and to obtain damages therefor, is specifically confirmed (sec. 2), and this applies especially to unregistered manuscripts. The method of registration of an unpublished work Protection to secure playright or performing right, as previously »* impub- stated, is absolutely simple, consisting solely in the ^^^^^ ^°'^ registration of a claim and the deposit of one copy of the work in manuscript or other unpublished form, with a fee of one dollar. The law is clear and satis- factory as to the punishment, after such registration, of infringement of playright or performing right, but it is not clear as to the date from which such protec- tion starts, and whether protection is for an indeter- minate period up to publication (practically in per- petuity if no publication be made) , or for the statutory term. This is because the relations of publication and first performance are inferences only and specifically defined in the law. The Copyright Office issues a certificate for twenty-eight years, but without refer- ence to initial date, which would be presumably the date of the certificate. The Copyright Office will doubtless, under this precedent, issue renewal certifi- cate for the second term of twenty-eight years. The trend, and in several instances the letter of the law, shows publication to mean the multiplication or re- production of printed or other copies and their public offering, sale and distribution, and indicate that per- formance, whether privately or publicly and for pro- fit, is not publication. The new Copyright Office Rules specifically hold that: "Representation on the stage of a play is not a publication of it, nor is the public performance of a musical composition publication." Judicial decisions on this point both in England and this country are confusing if not contradictory. In the absence of specific provision in the law for renewal of term in unpublished works, the l8o COPYRIGHT Indeter- minate pro- tection Printing and performance view that the grant of the statute is for protection under the common law rather than a statutory and limited grant of privilege, is defensible and may be upheld by the courts, should a case arise. No case is likely to arise for twenty-eight years from the time of first copyright, under the act, of an unpublished work; but the dilemma will then present itself to the author whether he should apply for a renewal term and thus accept the limitations of the statute, or rely upon the original registration as a protection in per- petuity up to the time of publication. Possibly before that time this difficult point may be made clear by supplementary legislation. The most serious argument against the view that unpublished works may be protected indeterminately, is founded on the provision of the Constitution au- thorizing Congress to grant protection for limited terms, as to which the view may be upheld that Con- gress is not here making a grant, but is oifering statu- tory protection to the inherent right of an author in an unpublished work. In any event the author has clear rights for twenty- eight years from the date of publication or the date of first performance, whichever the earlier. In case of publication, it is altogether probable that the playright or performing right will be construed by the courts to lapse at the end of the copyright term and renewal thereof of the published work, and in case a "book of the play" or libretto of an opera is printed for sale within a theatre in connection with the performance, that will undoubtedly constitute publication and such copies should be copyrighted. The doctrine that performance is not publication was upheld by the N. Y. Court of Appeals in Palmer V. DeWitt in 1872, in which the assignee of the manu- script and playright of Robertson's drama "Play" DRAMATIC AND MUSICAL i8i was granted an injunction against the printing of the drama, although it had been publicly performed, but not printed, in London. The same doctrine was applied in the Illinois Supreme Court in 1909 in Frohman v. Ferris. But publication abroad, by the printing of a drama unless protected under the in- ternational copyright provisions, has been held to forfeit the common law playright transferred with an unpublished manuscript, by the decision in Daly v. Walrath in 1899, by Judge Bartlett in the N. Y. Supreme Court, when an injunction was refused against the performance of Sudermann's "DieEhre," translated as "Honor," because the author had printed the play in Germany despite a contract with the American assignee to refrain from publication. In the case of Wagner v. Conried in 1903, in the U. S. Circuit Court in New York, Judge Lacombe declined to enjoin a production of " Parsifal," holding that the publication of a printed edition by Schotts in Germany had forfeited playright, since the reser- vation by Wagner in his contract with Schotts of the acting rights was not applicable in this country. The printing of a dramatic manuscript solely for the use of the players is not publication, as was held in French V. Kreling, in 1894, by Judge Hawley in the U. S. Circuit Court in California, where Farnie's opera "Falka," of which the musical score had been pub- lished, but the libretto printed only for the singers, was protected as an unpublished manuscript. The English law as to dramatic and musical copy- English right and playright and performing right, has been confusion most confusing if not contradictory, and authorities differ, as do MacGillivray and Scrutton, in its inter- pretation. Whether public performance constitutes publication or whether they are separable and separate events has been diversely treated in the laws, by the 1 82 COPYRIGHT Specific English provisions Probable effect judges and in legal text-books. The dramatic copyright act of 1833, known as Bulwer-Lytton's act, a clumsy attempt to clear up earlier uncertainty, provided that the author of " any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, com- posed, and not printed and published," shall have " the sole liberty of representing in any part of the British Dominions"; "and the author of any such produc- tion, printed and published," shall, "until the end of twenty-eight years from . . . such first publica- tion" or for life, have "the sole liberty of represent- ing .. . as aforesaid." The general copyright act of 1842 specifically applied this previous act also to "musical compositions" and enacted "that the sole liberty of representing or performing . . . any dra- matic piece or musical composition" shall "endure ... for the term in this act provided for . . . copy- right in books," that is, for forty- two years or life and seven years; and the provisions of the act as to copy- right and registration were extended to representing or performing, "save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this act to the first publica- tion of any book." The "copyright (musical com- positions) act" of 1882 added the requirement, that in the case of a musical composition, to retain the performing right, notice of reservation should be printed on the title-page of every published copy, and the act further provided that the proprietor of the performing right, if the owner of the copyright be another person, may require him to print such notice of reservation, for neglect of which he shall forfeit twenty pounds. Thus common law r^hts, it would seem, in an unpublished and unperformed dramatic or musical DRAMATIC AND MUSICAL 183 work were given, pending publication, statutory pro- tection, appeirently in perpetuity, from the date of composition. Publication of a dramatic or musical composition in printed form ensured copyright pro- tection as a book for forty- two years or life and seven years; and performing right was protected for forty- two years from " the first public representation or performance of any dramatic piece or musical com- position" or life and seven years, whichever the longer. It had been the view of many English authorities Publication that publication in printed form as a book before the P^io' *<> first public performance forfeited performing rights, P«rf°™^°« which opinion w£is shared by the Royal Copyright Commission as voiced in the report of 1878 in the digest of Sir James Stephen, who seiid : ' ' The exclusive right of representing or performing a dramatic piece or musical composition cannot be gained if such dra- matic piece or musical composition has been printed and published as a book before the first representa- tion thereof." But in the later case of Chappell v. Boosey in 1882, in respect to John Oxenford's play of "The bellringer," which had been printed and pub- lished previous to performance, it was held in the Court of Chancery that publication as a book before performance does not take away performing rights. On musical compositions, however, the performing right is forfeited on publication in print unless notice of reservation is printed on the .published copies. There remain the difficult questions whether when publication precedes performance the statutory pro- tection of the performing right extends beyond the forty-two years from publication and whether copy- right and playright should be separately registered. It has been the practice of English dramatists to give a so-called "copyright performance" at a minor 1 84 COPYRIGHT The new British code British in- ternational protection theatre, in which actors walk and talk through the drama and the public is invited to pay a shilling at the box office — and sometimes given half a crown apiece for the purpose; which performance, though probably not necessary to fulfill any legal require- ment, permits registration of first performance at Stationers' Hall and gives useful public notice to possible infringers. This uncertain and confused situation will be rem- edied under the new British measure by the inclu- sion under "copyright" of the right "to perform . . . to deliver, in public" and the making of the copyright term the "life of the author and fifty years after his death," which together afford the simplest and most complete protection of playright as incident to copy- right. The international copyright act of 1844 contained the provision " that neither the author of any book, nor the author or composer of any dramatic piece or mu- sical composition . . . which shall ... be first pub- lished out of her Majesty's dominions, shall have any copyright therein respectively, or any exclusive right to the public representation or performance thereof, otherwise than such, if any, as he may become entitled to under this act," — a provision inserted probably for advantage in negotiating reciprocal conventions with other countries. This provision was applied in 1863, in the case of Boucicault v. Delafield, to a British author whose play had been first printed and pub- lished as well as performed in America. In Bouci- cault V. Chatterton in 1876, the Chancery Division held that the prior performance of " The Shaughraun " in New York was publication and deprived the au- thor of playright in England, — which again seems incompatible with the doctrine upheld in the later case of Chappell v. Boosey, above cited. Great Britain DRAMATIC AND MUSICAL 185 is the only country in the International Copyright Union which has declined to accept the declarative interpretation made in Paris in 1896 of the Berne convention of 1886, declaring that performance does not constitute publication. Thus if a dramatic or musical work is first publicly performed outside the British dominions, the performing right is extin- guished therein, unless protected under the interna- tional copyright acts, though first publication outside the British dominions of a work first publicly per- formed within them, may not extinguish the per- forming right. The confusion of judicial interpretations, as to the Statutory relations between performance and publication, in aml'ieuity international as well as domestic copyright, was in- vited by the unfortunate draftsmanship in the copy- right act of 1842, in which the clause making first performance "equivalent in the construction of this act to the first publication of any book" may be taken either in a comprehensive sense or merely as defining the starting-point for performing right as well as for copyright in the specific sense. The question of what is public performance is of What is some importance, especially in Great Britain, where ^^^^^P®'" playright is not infringed except by representation in a place of dramatic entertainment and where it has been held that any place in which a dramatic piece is publicly performed is for the time a place of dramatic entertainment. A public performance is probably one to which the public in general is admitted either by sale of tickets or by invitation; and this would probably include a performance given before a society to membership in which the public might be ad- mitted, although a performance limited to a certain class of the public might not be construed as a public representation. Where "Our boys" was performed i86 COPYRIGHT at Guy's Hospital, London, by an amateur company, for nurses and others connected with the hospital specially invited, it was held in 1884, in Duckz;. Bates, that though a performance may be public where the public are present, although no money is taken, yet the production in question was not a public represen- tation. In this leading case, important as a precedent for America as well as in England, the decision was made by Justices Brett, M. R., and Bowen, L. J., Justice Fry dissenting, and the Master of the Rolls, in an elaborate opinion, discussed the relations of private and public performance, as a question of fact : "In order to entitle the author to penalties there must be a representation which will injure the au- thor's right to money ; such, for instance, as a repre- sentation which, although it is not for profit, would attract persons who are willing to pay money, and would induce them not to go and see a performance licensed by the author. . . . The representation must be other than domestic or private. There must be present a sufficient part of the public who would go also to a performance licensed by the author as a commercial transaction. ... I wish to say, by way of warning, that those who go beyond the facts of the present case may incur the penalties of the statute." Manuscript Common law rights in an unpublished manuscript "elite of an unperformed work, cover both copyright and playright. In 1894, in Gilbert v. Star, while the comic opera "His Excellency" was in manuscript and under rehearsal. Justice Chitty in the Court of Chancery granted an injunction against a newspaper report of the plot and incidents on the common law ground that its communication to the newspaper involved a breach of contract, thus confirming the right of an author to full control of his manuscript work fco- copyright as well as playright, upheld in Prince AI- DRAMATIC AND MUSICAL 187 bert V. Strange in 1849. But a dramatic author can- not enjoin a drama, however similar, completed before the publication or performance of his own work, as was decided in the case of Reichardt v. Sapte, in 1893, where the author of " The picture dealer" was denied relief against the closely parallel play "A lucky dog," which was proved to have been completed in 1890, though not performed until after the writing and presentation of the author's play in 1892. The right of control of an unpublished dramatic American manuscript under common law was strengthened in ''^^^ Heme v. Liebler, in 1902, by the decision of Judge Ingraham in the N. Y. Supreme Court, which upheld the right of the plaintiff to prevent sub-license of a play beyond the terms of the contract by a licensee, who had agreed to keep the manuscript unpublished and use it only under specific limitations. In the case of Maxwell v. Goodwin, in 1899, where the plaintiff's play of "Congress" had been rejected by the defend- ant, who afterward produced a play "Ambition," also founded on scenes in Washington, Judge Seaman in the U. S. Circuit Court in Illinois overruled the de- fendant's contentions that there was no playright under common law in an unpublished manuscript and that there was no inherent property right in " ideas or creations of the imagination apart from the manuscript in which they are contained or the lan- guage in which they are clothed; though an injunc- tion was denied on proof that the defendant had not read the plaintiff's manuscript and that the actual author of "Ambition" had no knowledge of the plaintiff's play. In 1883, in Thomas v. Lennon, where Gounod's Unpublished " Redemption," of which the orchestral score was un- orchestral published, had been rewritten for orchestra from a i88 COPYRIGHT Dramatic work by employee Copyright term published non-copyright piano arrangement, Judge Lowell, in the U. S. Circuit Court in Massachusetts, ruled against this as an infringement of the unpub- lished work on common law grounds — but this de- cision has not been considered good law. Copyright in dramatic work can be obtained, as in the case of encyclopaedic and like works, by the em- ployment for hire of a dramatic author, as was fully established in the case of Mallory v. Mackaye in 1898, by Judge Wheeler in the U. S. Circuit Court in New York, where Mackaye had contracted for a salary of $5000, that all inventions and plays by him within the ten years of the contract should belong to Mal- lory, and was restricted accordingly from the inde- pendent production of "Hazel Kirke." The duration of copyright in dramatic and musical compositions is the same as for books, in the United States (twenty-eight years with renewal for twenty- eight years more), in Great Britain (under the new code life and fifty years), in Australia (forty- two years or life and seven years, as hitherto in Great Britain), and in Canada and Newfoundland (twenty- eight years with renewal for fourteen years more), — as also in most other countries, the new term for those in the International Copyright Union which have accepted the convention of Berlin, being life and fifty years. But in the case of a "dramatico- musical" work, where the libretto and the music are by different authors, the respective terms may end at different dates, as was held in 1905, and upheld in 1909, by the German courts as to the opera " Carmen " under the Franco-German convention limiting copy- right to thirty years after death. Bizet, author of the music, had died in 1875, but one of the three librettists was still living, on which facts the court held that the musical score, but not the libretto, was free from DRAMATIC AND MUSICAL 189 copyright. Under the new British and Canadian meas- ures, which include the unusual provision that the copyright term in a work of joint authorship shall be determined by the first instead of the last death, the result would be to the contrary effect. Registration in the United States, as also in Canada Registration and Newfoundland, through the deposit of copies, is entirely the same for a dramatic or musical composi- tion as for a book. Registration in England of a dramatic or musical composition under the act of 1842 (sec. 20) was to be made at Stationers' Hall, as in the case of a book, by recording in statutory form the title, the time and place of first publication, or for performing right, of first public performance, and the name and abode of author and of proprietor. But the same law (sec. 24) provided that protection of per- forming right in a dramatic piece should not be de- pendent upon entry in the registry and, by including in the definition of a dramatic piece (sec. 2) a "musi- cal entertainment," evidently included musical com- positions in this exemption, and thus made registra- tion optional. This view was upheld in 1848 in Russell V. Smith, when the song "The ship on fire" was protected as a "dramatic piece," though it had not been registered. The new British measure omits all requirements for registration of any works. Regis- tration of any copyright, performing right or assign- ment is required in Australia as a prerequisite for legal action. Assignment or grant of a dramatic or musical Assignment composition, as of a book, may be made (sec. 42) by an instrument in writing, acknowledged, if in a foreign country, (sec. 43) before a consular or diplomatic officer, and must be recorded (sec. 44) in the Copy- right Office within three months, or if made in a for- eign country, six months, in default of which it is 190 COPYRIGHT void as against any subsequent purchaser. Assign- ment in Great Britain must be in writing, and pre- vious to the new code with entry at Stationers' Hall, in the case of performing right as well as of copy- right. It should be noted that playright does not pass with copyright ipse facto, though the new code as adopted by the House of Commons has no specific provision on this point. But it is most desirable that in any transfer of copyright or playright the exact nature of the right transferred should be defined in the writing. A partial assignment, or license, of per- forming right as well as of copyright may be made, and will be protected by the courts. The right to grant a specific license, and to enforce its limitations, was upheld in 1892 in Duck v. Mayen, in an English court by Justice Day, who held that where the de- fendant had obtained license at the price of one guinea to play "Our boys" for charity at a music hall, but performed it elsewhere, though for the same charity, the usual royalty of five guineas must be paid. Assignment in Canada and Newfoundland must be in writing in duplicate copies, of which one must be deposited in the office of copyright. Parody The general principles as to infringement and fair use, treated fully in another chapter, apply to dra- matic and musical compositions, as already illus- trated above, but some special applications may here be noted. That a parody or burlesque may not be an infringement, though including some quotations from the work parodied, was decided in 1903, in Bloom v. Nixon, — where Fay Templeton had given a parody or imitation of another actress's singing of "Sammy" in the "Wizard of Oz," — in the U. S. Circuit Court in Pennsylvania by Judge McPherson, who held that as this was essentially an imitation of personality, it was not an infringement of copyright: "Surely a parody DRAMATIC AND MUSICAL 191 would not infringe the copyright of the work parodied merely because a few lines of the original might be textually reproduced." The judge added: "No doubt the good faith of such mimicry is an essential ele- ment; a mere attempt to evade the owners' copyright . . . would properly be prohibited" as "doing in a roundabout way what could not be done directly." There may be infringement of dramatic copyright Infringement in the use of a single scene or situation, as already ^7 s"|Bie set forth with respect to novels, provided this is of ^'*"***°'' dramatic character. In 1892, in Daly v. Webster, the U. S. Circuit Court of Appeals, through Judge Lacombe, held that the railroad rescue scene in Brady's "After dark" infringed the copyright of Daly's "Under the gaslight," which contained the similar situation of the rescue of a person on a rail- road track before an approaching train. Though there was little dialogue in this scene, the court held that while mechanical appliances are not en- titled to copyright, a series of events dramatically represented are copyrightable. In the subsequent suit for damages, Daly v. Brady, the U. S. Supreme Court in 1899, through Justice Peckham, upheld this decision, and held also that such a situation consti- tuted an integral part of the copyrighted drama and should therefore be protected against infringement. That there may be infringement of a dramatic com- position without the use of scenery or costumes was incidentally decided in Russell v. Smith, where the song "The ship on fire," sung dramatically without these accessories, was protected as a dramatic piece. While the title of a dramatic or musical composi- Protection of tion, like that of a book, cannot be copyrighted as ^^^^ such, the courts seem disposed to emphasize the title as an integral part of a play, perhaps more than in the case of a book because the advertising of another play of 192 COPYRIGHT like name, especially in the case of one of long run and wide popularity, may mislead the public and involve unfair competition. This protection was upheld as a matter of common law in Aronson v. Fleckenstein in 1886, by Judge Blodgett in the U. S. Circuit Court in Illinois, when the use of the title "Erminie" was held to be unlawful, though the operetta originally designated by the title had not been copyrighted. But in Glaser v. St. Elmo Co. in 1909, the U. S. Circuit Court denied relief where the tide of Miss Evans's novel, then out of copyright, was used for a second and unauthorized dramatization. There may be dan- ger to copyright or playright when a work is pub- lished or performed under a title differing from that under which it is copyrighted; but the change of a descriptive sub-title has been held to be immaterial. In the case of Daly's play "Under the gaslight," which in the copyright entry bore the sub- title "A romantic panorama of the streets and homes of New York," but in printed form the changed sub- title "A totally original picturesque drama of life and love in these times," the defendants in Daly v. Webster al- leged that this change made the copyright invalid, which contention was negatived by the U. S. Circuit Court of Appeals, which held in 1892 that the sub- title was merely descriptive and not an essential part of the title — a principle later applied by Judge La- combe in Patterson v. Ogilvie, in 1902. Names of In the case of Frohman v. Weber in 1 903, in the N. Y. characters Supreme Court, where the proprietor of the play en- titled "Sherlock Holmes" sought to enjoin another play "The sign of the four," in which the name Sherlock Holmes designated the leading character, Judge Clarke held that this did not constitute unfair competition and denied a preliminary injunction. The question of the person liable for the infringe- DRAMATIC AND MUSICAL 193 ment, especially of playright, is one of some diffi- Persons culty. In general, while any one participating in a i»aWe for piratical performance, as an actor, is technically ™f"nsement guilty of infringement, it is usually the person or per- sons responsible for and profiting by the performance who should be sued. The question of responsibility is one of fact, and the early English decisions seem confused and even contradictory. The person who Principal in has the initiative and control of a performance, par- control ticularly if he is directly the employer of the perform- ers and hcis authority to discharge them, may be, par excellence, the infringer even if he does not know that the performance is piratical. In 1886, in Monaghan v. Taylor, the defendant was held liable for infringement because a singer employed in his music hall sang a copyright song, though the defendant did not choose or pass upon the number. Thereafter in the "copy- right (musical composition) act" of 1888, it was pro- vided that "the proprietor, tenant or occupier of any place of dramatic entertainment" shall not be liable, "unless he shall willfully cause or permit" a perform- ance, "knowing it to be unauthorized." The courts seem disposed to acquit a mere agent of responsi- bility. In 1893, in French v. Day, Gregory, et al., it was held by Justice Kennedy as to a performance of "The miner's wife" asserted to be an infringement of "Lost in London," that the proprietor of the theatre, Day, "who merely used Gregory," the man- ager, "as his mouthpiece," was the responsible de- fendant. The new British code holds liable any person who for profit permits a place of entertainment to be used for an infringing performance unless he were not aware and had no reasonable grounds for suspecting it to be an infringement. In the prevention or punishment of unauthorized performances by irresponsible private companies, the Protection against "fly by night" companies State legis- lation 194 COPYRIGHT chief obstacle in the United States was the difficulty of reaching the "fly by night" companies, as they were called, as they flitted from state to state, and from one court jurisdiction to another. To remedy this difficulty, an important protection of the per- forming right in dramatic works was assured by the act of January 6, 1897, obtained largely through the efforts of Bronson Howard, as president of the Ameri- can Dramatists Club. This act provided penalty of $100 for the first and $50 for each subsequent un- lawful performance, and imprisonment for not exceed- ing one year, when such unlawful performance was willful and for profit; and also that an injunction issued in any one circuit might be enforced by any other circuit in the United States. This was in con- sonance with successful efforts to obtain the passage of state laws to protect dramatic and musical works, aside from the federal copyright law, obtained by the Dramatists Club between 1895 and 1905 in the states of New Hampshire, New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, Connecticut, and Michigan. These varied in form in the several states, though of the same general purport. The New York statute, for instance, adds to the penal code a new section as follows: " Sec. 729. Any person who causes to be publicly performed or represented for profit any unpublished, undedicated or copyrighted drama- tic composition, or musical composition known as an opera, without the consent of its owner or proprietor, or who, knowing that such dramatic or musical com- position is unpublished, undedicated or copyrighted and without the consent of its owner, or proprietor, permits, aids or takes part in such a performance or representation shall be guilty of a misdemeanor." The texts in all the states are given in full in Copyright DRAMATIC AND MUSICAL 195 Office Bulletin No. 3, 1906, "Copyright enactments of the United States," pages 1 05-1 15. The American code of 1909 enacts (sec. 28) that Remedies "any person who willfully and for profit shall infringe under any copyright ... or who shall knowingly and will- P"®**" " fully aid or abet such infringement, shall be deemed guilty of a misdemeanor," punishable by "imprison- ment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court"; and provides (sec. 25, fourth) damages "in the case of dramatic or dramatico-musical or a choral or orches- tral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing perform- ance; in the case of other musical compositions, ten dollars for every infringing performance"; and also provides (sec. 36) for injunction operative throughout the United States. In England the protection of musical properties Musical under the acts of 1833-42 and 1882-88, had become |'°*i\'J^'' '° so difficult that English music publishers threatened to cease printing new original works because of the free- dom with which they could be pirated. Under the pro- visions of 1833, as reenacted in 1842, every infringing performance of a musical composition, as of a drama- tic piece, involved liability to "an amount not less than forty shillings or the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever may be the greater damage," in addition to costs. The "copyright (musical compositions) act" of 1882 (45 & 46 Victoria, c. 40) had required that the right of public performance should be reserved by printed notice on each published copy and provided for a penalty of twenty pounds where the proprietor of the publishing copyright neglected, after require- 196 COPYRIGHT ment from the owner of the performing right, to print such notice. The "copyright (musical compo- sitions) act" of 1888 (51 & 52 Victoria, c. 17) pro- vided that the penalty or damages for every unau- thorized performance of any musical composition shall, in the discretion of the court, be "reasonable" and may be less than forty shillings for each such performance, or nominal, and that the proprietor, tenant or occupier should not be liable unless "will- fully" causing or permitting such unauthorized per- formance, "knowing it to be unauthorized," — but the act specifically excepted "any opera or stage play " from its provisions. The protest of the musical Acts of composers and publishers led to the passage of the 1902-1906 "musical (summary proceedings copyright) act" of 1902, which authorized a constable to seize without warrant pirated copies hawked or otherwise offered for sale, on the written request and at the risk of the copyright owner or by direction of the court, and pro- vided for their forfeiture and destruction or delivery to the owner on the decision of the court. A Musical Copyright Committee, for the consideration of these vexed questions, was appointed by the Home Office and made a report in 1904; and a further "musical copyright act " of 1906 continued the provisions stated and provided also for the seizure of plates as well as copies of pirated musical compositions and for the summary punishment of the offender by fine not ex- ceeding five pounds and, for a repeated offense, by fine not exceeding ten pounds or imprisonment not exceed- ing two months, possession being proof of fraudulent intent unless the copies bore the name of a printer or publisher. Both these acts were applicable only within the United Kingdom. These provisions, in addition to those for injunction and adequate costs, have bettered the condition of musical properties in England, and DRAMATIC AND MUSICAL 197 they remain unrepealed, except as to requirement of registration, under the new British code as adopted by the House of Commons. In most countries playright in the case of dramatic Playright or musical works is specifically covered in the copy- "* °^^'^ ■i.j.j.i, ,■ ■ •! countries right statutes or protected m connection with copy- right, although in Austria, Russia, Denmark and Nor- way, in the case of music, special notice of reservation is required, while in Australia special reservation -of the performing right must be made on publication in print of drama or music. In general, performance is differentiated from International publication, and while in some countries, as above in- provisions dicated, publication in printed form, especially of a musical work, may waive the exclusive right of per- formance, performance is generally held not to con- stitute publication. This view is expressly set forth in the interpretation made at Paris, 1896, of the Berne convention of 1886, whereby section 2 of the inter- pretative declaration defines "published works" as "works actually issued to the public." "Consequently, the representation of a dramatic or dramatico-musi- cal work, the performance of a musical work ... do not constitute publication." The Berlin convention of 1908 repeats the same language in article 4, pre- facing it with the definition that "by published works {' (Buvres pubises') must be understood, ac- cording to the present convention, works which have been issued ('oeuvres ediiies')" — the English text here given being the official translation of the U. S. Copyright Office. In most foreign countries which include musical Foreign compositions under subjects of copyright either as protection covered under "literary and artistic works" or by ^^^^^' specific mention, the general principles as to arrange- ments and adaptations hold in such countries. Sev- 198 COPYRIGHT eral countries, as Belgium, specify however "the exclusive right of making arrangements on motives of the original composition," Brazil, Luxemburg, Mexico, Nicaragua and Tunis following this prece- dent in nearly identical language. Germany speci- fically protects the "sole right of making extracts from musical works and arranging for orchestra or in parts." Spain specifies among its prohibitions "the total or partial pubUcation of melodies, with or without accompaniment, transposed or arranged for other instruments or with different words." Hungary specifies that "every arrangement of a musical work, published without the consent of the author, which cannot be considered as a composition in itself," is an infringement. Where, however, the author of a work permits or licenses an adaptation or arrangement, or an original adaptation or arrangement is made from a work in the public domain, that is properly a separate subject of copyright, as is specified in the statutes of Colombia, to the effect that "variations, etc., on a theme or air which is public property, constitutes property. Transpositions are similar to translations of literary subjects." International Dramatic and musical works were specifically in- definitions eluded under the protection of the International Copyright Convention of Berne, 1886, by the defini- tion in article IV of "literary and artistic works" as including "dramatic or dramatico-musical works; musical compositions with or without words." In the Berlin convention, 1908, the same general term was defined in article 2 as including "dramatic or dramatico-musical works; choregraphic works and pantomimes, the stage directions ('mise en schne') of which are fixed in writing or otherwise; musical com- positions with or without words." "Adaptations, arrangements of music, etc., are specially included," DRAMATIC AND MUSICAL 199 in the phraseology of article X of the convention of 1886, "amongst the illicit reproductions to which the present convention applies, when they are only the reproduction of a particulcir work, in the same form, or in another form, with non-essential alterations, or abridgments, so made as not to confer the character of a new original work " ; and practically the same lan- guage is repeated in article 12 of the convention of 1908. On the other hand, "adaptations, arrange- ments of music," etc., are protected as original works without prejudice to the rights of the author of the original work, in article 2 of the convention of 1908. The German law of 1901 permits, however, extract from or other use of musical compositions in adapta- tions or arrangement under specified circumstances, as for family, social or other gratuitous performance, under the limitations of the law, which exception seems to be permitted also under the law of 1910. Throughout the countries of the International National Copyright Union, first publication in any of these fo™»alities countries and compliance with its formalities entitle the author to playright as well as copyright in all the other countries within the Union, with some ex- ceptions to be noted. Thus in Switzerland the condi- tions of performance must be given at the head of the printed play; and the law stipulates that the author may not require as royalty more than two per cent of the gross profits, and a performance at which the ad- mission fee is reckoned to cover only cost of produc- tion or a performance for charitable purposes, is not considered an infringement of playright. In Italy a play performed, but not printed and published, must be submitted in manuscript for inspection within three months of first performance, together with a declaration reserving the playright; a printed book or play should be deposited with accompanying 200 COPYRIGHT notice of reservation within three months, or the proprietor cannot obtain damages until such deposit, and failure to deposit within ten years abandons copyright protection. Italian proprietors of music sometimes refrain from printing and publishing music, with the intent of maintaining copyright and playright indefinitely. Specific In Luxemburg and Sweden, reservation of play- reservations right must be stated on printed copies, as is also the ons ^^^^ ^g ^^ music in these countries and in the other countries elsewhere cited. In Sweden, the term for playright is less than for copyright in the printed work, being for life and thirty years only. In Sweden and Norway, the author protecting his rights by first publication in these countries, must be a citizen of one of the countries within the International Copy- right Union or must acquire rights through a pub- lisher therein; though in the other countries of the Union, this question of nationality is immaterial. In Norway and Denmark, there must be reservation of right of recitation, but in Norway this lapses in any event at the end of three years, provided the recitation does not take the shape of a dramatic per- formance. In Holland and the Dutch Indies, reserva- tion of playright must be given, and printing within the country has hitherto been required to protect a published work. In Hungary, the author of a play must give his name on the title-page or in the an- nouncement of the play, and protection is extended to foreigners who have been for two years rate-payers and residents in Hungary, as well as those whose countries have reciprocal relations. In Finland, the author's name and reservation of playright must be given on the printed copy, and protection is extended to foreigners on condition of residence and publica- tion in Finland. DRAMATIC AND MUSICAL 201 Most of the smaller European countries and many South American countries, including playright under copyright, base protection on reciprocal protection of their citizens in other countries, while protection of performing rights in Brazil requires notice on printed plays of the reservation of royalty for per- formance. In many oriental countries, as Egypt, China, etc., protection is afforded to some extent in the consular courts. In the Pan American Union, the Buenos Aires Pan convention of 1910 specifically includes dramatic and American musical works as literary works, without special provisions. XII "Canned music" contest Mechanical music provisos MECHANICAL MUSIC PROVISIONS As the international copyright provision with the manufacturing clause was the central feature of the copyright campaign culminating in the law of 1 891, so the provision for the control of mechanical music with the compulsory license clause was the central feature of the contest culminating in the act of 1909. This came to be known as the "canned music" fight, and arguments pro and con consumed the greater part of the hearings before the Committees on Pat- ents. The solution finally reached was in the provisos added to the musical subsection (e) of section i of the bill, which in full is as follows : " (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 repro- duced: Provided, That the provisions of this Act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions pub- lished and copyrighted after this Act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: And MECHANICAL MUSIC 203 provided further, and as a condition of extending the copyright control to such mechanical reproductions, That whenever the owner of a musical copyright has Compulsory used or permitted or knowingly acquiesced in the use Ucense of the copyrighted work upon the parts of instru- ments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of two cents on each such part manufactured, to be paid by the manufacturer thereof; and the copyright proprietor may require, and if so the manufacturer shall furnish, a report under oath on the twentieth day of each month on the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the twentieth of the next succeeding month. The payment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit: And provided further, That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copy- right office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright. " In case of the failure of such manufacturer to pay Damages to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at said' rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable 204 COPYRIGHT Public per- formance The compro- mise result counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of this Act, not exceeding three times such amount. " The reproduction or rendition of a musical com- position by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs." This provision, though somewhat involved in form, tells its own story, and there has thus far been no occasion for judicial construction. In the series of discussions before the Committees, the friends of copyright argued for the exclusive and unrestricted right of the musical composer to control absolutely the mechanical reproductions of his work, while the representatives of "canned music" argued at first that mechanical reproduction should be per- mitted without reference to copyright, and later that there should be entire liberty to make reproductions of a musical work on the sole condition of a specified payment to the copyright proprietor. The provision as actually adopted was a compromise upholding the negative right of the author to prevent mechanical reproduction, but requiring him, in the event of a grant of authority to any one manufacturer to repro- duce his work mechanically, to extend that privilege to any other manufacturer on payment of the speci- fied royalty. This scheme is practically modeled on what was known as the Pearsall-Smith royalty plan, which, as proposed for books, was stoutly fought by the proponents of the copyright act of 189 1, through- out that memorable copyright campaign. In the case of the White-Smith Music Pub. Co. v. Apollo Co., in which the /Eolian Co. was supposed MECHANICAL MUSIC 205 to be the real complainant, the representatives of Judicial the musical author were, in 1906, denied protection coistruction against the mechanical music rolls made by the defend- ant, by the Circuit Court of Appeals, where the judges considered themselves ' ' constrained ' ' by the necessity of strict construction to decide that "a perforated roll is not a copy in fact of complainant's staff notation," while saying "that the rights sought to be protected belong to the same class as those covered by the specific provisions of the copyright statutes." It was presumed by many during the copyright campaign that the Supreme Court would make a broad construc- tion of the statute, but that court held, February 24, 1908, in an opinion written by Justice Day, that the considerations adduced "properly address themselves to the legislative and not to the judicial branch of the Government" and that "as the act of Congress now stands, we believe it does not include these records as copies or publications of the copyright music involved in these cases." Justice Holmes, while not dissenting, added a memorandum to the effect that "the result is to give to copyright less scope than its rational significance and the ground on which it is granted seems to me to demand. . . . On prin- ciple, anything that mechanically reproduces that collocation of sounds ought to be held a copy, or if the statute is too narrow, ought to be made so by a further act, except so far as some extraneous consid- eration of policy may oppose." While the judges thus felt "constrained" to deny relief, their strong lan- guage in defense of copyright control doubtless had its effect upon the legislative authorities in the fram- ing and the passage of the new code. This decision was confirmatory of an earlier deci- sion, in Stern v. Rosey in 1901, of Judge Shepard in the Court of Appeals in the District of Columbia, 206 COPYRIGHT Punishment of infringe- ment Notice to proprietor of intention to use that the mechanical reproduction of two copyrighted songs could not be prevented under the existing law. Specific and elaborate provision is made for the punishment of infringers under the mechanical music proviso (sec. i, e) by sec. 25, e: "Whenever the owner of a musical copyright has used or permitted the use of the copyrighted work upon the parts of musical instruments serving to reproduce mechanically the musical work, then in case of infringement of such copyright by the unau- thorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylinders for use in mechanical music-producing machines adapted to reproduce the copyrighted music, no criminal action shall be brought, but in a civil action an injunction may be granted upon such terms as the court may impose, and the plaintiff shall be entitled to recover in lieu of profits and damages a royalty as provided in section one, subsection (e), of this Act: Provided also, That whenever any person, in the absence of a license agreement, intends to use a copyrighted mu- sical composition upon the parts of instruments serv- ing to reproduce mechanically the musical work, relying upon the compulsory license provision of this Act, he shall serve notice of such intention, by reg- istered mail, upon the copyright proprietor at his last address disclosed by the records of the copyright office, sending to the copyright office a duplicate of such notice; and in case of his failure so to do the court may, in its discretion, in addition to sums hereinabove mentioned, award the complainant a further sum, not to exceed three times the amount provided by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full award is paid." MECHANICAL MUSIC 207 The Copyright Office provides a special form (U) Copyright on a blue card for registration of "notice of use on Officffonn mechanical instruments," in which the copyright owner of a musical composition gives notice that he "has used or has licensed the use of said composition for the manufacture of parts of instruments serving to reproduce mechanically such musical work." The recording fee for such notice, as fixed by the statute (sec. 61), is twenty-five cents for the first fifty words and twenty-five cents additional for each additional hundred words. For recording and certifying the license referred to (sec. I, e) the statute provides (sec. 61) for a fee of one dollar for not over three hundred words, two dollars if not over one thousand words and one dol- lar for each additional one thousand words or fraction thereof over three hundred words. The actual fixing of a specified price, as that of two The con- cents or a halfpenny on each reproduction, is a fea- stitutional ture quite new in law, American or English, and in- volves a serious constitutional question. Congress has granted to the Interstate Commerce Commission, and state legislatures to specified authorities, as public service commissions, power to regulate prices; and the U. S. Supreme Court, in 1909, confirming the N. Y. Court of Appeals in the Consolidated Gas Co. cases, upheld the application of the sovereign power of the state to limit the price of gas to 80 cents per looo cubic feet, as sold by a corporation enjoying a public franchise. In this compulsory license provision of the copyright code, Congress has gone further in two directions: it has fixed a royalty price, not by defini- tion or limitation of a "reasonable" price, but abso- lutely, and it has applied this provision not to a corporation enjoying franchise privileges, but to the individual owner of property created by his own labor. 208 COPYRIGHT English law The English laws had not mentioned mechani- cal reproduction up to the musical copyright act of 1906, which in section 3 expressly provided that " 'pirated copies' and 'plates' shall not, for the pur- poses of this Act, be deemed to include perforated music rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records respectively are made." The test CEise meanwhile on this question was that of Boosey v. Whight, which was finally decided in the Court of Appeal in 1900, with respect to the use of copyrighted songs on the perforated rolls of the ^Eolian. Justice Sterling in the lower court had decided that the per- forations were not an infringement of the copyright but that the marginal directions for playing might be such; Justice Lindley, M. R., held with him that the perforated roll was not a " copy ' ' of the sheet music, but overruled him on the second point, holding that the directions, though copied from the printed page, were neither music nor a literary composition. The new British measure as prepared in 1910 in- cluded as incident to copyright the sole right "in the case of a literary, dramatic or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered," thus in the simplest fashion completely covering the control of mechanical reproduction in conformity with the con- vention of Berlin. But in the Parliament of 191 1 the bill emerged from committee stage with an elaborate proviso, based on the American precedent, excepting from the definition of infringement contrivances for the mechanical reproduction of sounds on (i) proof that the copyright owner has previously acquiesced in mechanical reproduction, (2) prescribed notice of The new British code MECHANICAL MUSIC 209 intention, and (3) payment of royalty of 2H or 5 per cent with a minimum of a halfpenny for each record, or in the case of different works on the same record, to each copyright proprietor. When the international representatives met at The Berne Berne in 1886, the mechanical reproduction of music situation, was confined chiefly if not wholly to Swiss music- boxes and orchestrions and to hand-organs, of comparatively little commercial importance; and, possibly with some thought of the recognition of the hospitality of Switzerland, little emphasis was placed on the protection of musical composers against me- chanical reproduction of their works. In fact, the final protocol of the Berne Convention of 1886 contained, as clause 3, the following paragraph: "It is under- stood that the manufacture and sale of instruments for the mechanical reproduction of musical airs which are copyright, shall not be considered as constitut- ing an infringement of musical copyright." Despite strong representations at the congresses Lack of of the International Association for the protection of ^^?'^ ** literary property, held at London in 1890, Neuf- ""^' ^ ' chitel in 1891, and Milan in 1892, and a vigorous endeavor in connection with the Paris convention of 1896 to replace this clause, it was not modified until the convention of Berlin in 1908, in preparation for which a strong resolution was passed at the congress of the International Association at Vevey in 1901. With the increasing development of the phono- The Berlin graph and of the mechanical player, mechanical re- pro^sion, productions became so important a matter to musical ^^ composers and publishers, that much of the discussion in respect to the amendatory convention of Berlin of 1908 was upon this subject. In the amended conven- tion, the subject was fully covered by article 13: "Authors of musical works have the exclusive right 210 COPYRIGHT to authorize: (i) the adaptation of these works to instruments serving to reproduce them mechanically; (2) the pubHc performance of the same works by means of these instruments. "The limitations and conditions relative to the ap- plication of this article shall be determined by the domestic legislation of each country in its own case; but all limitations and conditions of this nature shall have an effect strictly limited to the country which shall have adopted them. " The provisions of paragraph I have no retroactive effect, and therefore are not applicable in a country of the Union to works which, in that country, shall have been lawfully adapted to mechanical instru- ments before the going into force of the present Convention. "The adaptations made by virtue of paragraphs 2 and 3 of this article and imported without the author- ization of the parties interested into a country where they are not lawful, may be seized there." German In Germany, under the general copyright law of precedents 1870, the higher courts gave to musical composers control over mechanical reproductions from which, as the industry grew, the authors or publishers obtained some little return. But succeeding the adoption of the permissive clause in the Berne convention of 1886, it was proposed in the new copyright law to free mechanical reproductions from the control of the composer. A protest was at once made by musical authors and publishers, which resulted in a modifica- tion of the form proposed by the government and the addition of a clause giving control where the repro- duction involved personal interpretation. In this form the "unfortunate section 22" became part of the law of 1 90 1 relating to copyright in literary and musical works. Section 22 was in the following language : MECHANICAL MUSIC 211 "Reproduction is permitted when a musical com- position is, after publication, transferred to such discs, plates, cylinders, bands and similar parts of instruments for the mechanical rendering of pieces of music. This provision is applicable also to inter- changeable parts, provided that they are not applied to instruments by which the work can, as regards strength and duration of tone and tempo, be rendered in a manner resembling a personal performance." This had the extraordinary and contradictory ef- fect of giving the author control over the finer repro- ductions of his works but denying to him any control over the cruder reproductions, as on hand-organs, orchestrions, etc. The opposition which developed against this impossible situation was largely influ- ential in bringing about the modification at Berlin in 1908 of the Berne clause. The law of May 22, 1910, Law of 1910 amended the previous general laws in conformity with the Berlin convention, especially by extending protection to the mechanical reproduction of music and cinematograph reproduction of artistic works. Section 22 of the law of 1901 was specifically replaced by an elaborate section, modeled on the American compulsory license provision and requiring a com- poser who permitted mechanical reproduction to grant similar rights on equal terms to any other man- ufacturers domiciled in Germany, with provisions for reciprocity and for the treatment of non-German composers through the tribunals of Leipzig. This law became effective coSrdinately with the Berlin con- vention on September 9, 1910, and in connection with it an ordinance promulgated by the Emperor July 12, 191 o, defined the time during which mechanical re- productions already made of copyrighted works should still be permitted. The use of extracts from musical as from other works, as perhaps in potpourris, 212 COPYRIGHT Gennany and the United States French precedents seems however still to be permitted as a result of the law of 1 901. As a result of the reciprocal provisions of the new German law, the President of the United States on December 8, 1910, proclaimed reciprocal relations between Germany and the United States with refer- ence to mechanical reproductions of music. In the opinion of May 6, 191 1, approved by the Attorney- General, a Presidential proclamation is required to determine "the existence of reciprocal conditions" as to the mechanical music provision (sec. i, e) as in respect to sec. 8 ; but as the proclamation of Decem- ber 8 did not recite that reciprocal conditions existed between September 9 and December 8, 1910, it is held that "it would not afford evidence sufficient to sustain an action for infringement between said dates. ' ' In France the general copyright act of 1793, as con- sidered to cover mechanical music, was interpreted or modified by the act of 1866, which enacted that "the manufacture and sale of instruments serving to re- produce mechanically musical airs which are still in the private domain, does not constitute musical in- fringement." In the suit of Enoch v. Societe des pho- nographes et gramophones, the Civil Court of the Seine had decided in 1903 that phonographic instruments were excepted from the protection of the law of 1793 by the "general immunities" concerning the mechan- ical musical instruments in the act of 1866. But in 1905 the Court of Appeals of Paris reversed this de- cision, holding that the law of 1866 applied solely to musical airs, that is, those involving no words, on the ground that the law of 1793 was enunciatory of the rights of authors, applying to all modes of publication and distribution, and that the word "publication" should be understood broadly "as jurisprudence has applied it to numerous modes of publication discov- MECHANICAL MUSIC 213 ered since the law of July 19 and 24, 1793, and the Code of 1810, and as nothing prevents its extension, in consequence of scientific progress"; and it there- fore concluded that literary works either by them- selves or associated with music were practically under the law of 1793 and not exempted by the law of 1866. A more recent case, in the Court of Commerce of the Seine in 1905, resulted, however, in the dismissal of a suit for infringement. France accepted the Berlin convention, June 28, 1910; but its provision in article 13, that "the limitations and conditions" as to me- chanical music protection "shall be determined by the domestic legislation of each country in its own case," makes uncertain whether protection becomes effective in the absence of specific legislation. In Belgium in 1904, in the suit of Massenet and Belgian Puccini V. Compagnie GSnSrale des phono graphes, et al., precedents it was held by the court of first instance of Brussels that the introduction for sale of discs and cylinders reproducing the musical compositions of the plaintiffs was illegal and liable for damages and punishable as an infringement. This decision was, however, over- ruled by the Court of Appeals of Brussels in 1905. Belgium accepted the Berlin convention. May 23, 1910, has since protected mechanical reproduction, and was proclaimed as in reciprocal relations with the United States, June 14, 1911. In Italy the copyright law was considered in rela- Italian tlon to mechanical instruments by several court deci- precedents sions of which the latest and most important seems to be in the case of the Societd, Italiana d. Autori v. Gra- mophone Co. of London, in which, in 1906, the Royal Court of Milan held that reproductions of music by gramophone constituted infringement. This decision held that article three of the Berne convention of 1886 could not derogate from or modify the domestic 214 COPYRIGHT other countries Argument for inclusion private law of 1882, and as the Italian law specifi- cally covers publication and reproduction "by any method," it includes gramophone discs. "Publica- tion means a process by which the intellectual con- cept of the artist is revealed, and brought to the knowledge of others." "What the legislature wanted has been this : that the author be the exclusive owner of the external form in which the creation of the mind has been fixed, and, so to speak, materialized; and that the right be reserved to him to get from his studies and his exertions all the economic benefits which he could derive therefrom." In the laws of Switzerland of 1883, and Monaco and Tunis of 1889, the fabrication and sale of me- chanical instruments or devices for reproducing musical airs were excepted from the definition of piracy. But all these countries have ratified the Ber- lin convention "without reservation." Luxemburg and Norway have applied the Berlin provision and were proclaimed as in reciprocal relation with the United States on June 14, 191 1. Russia has followed American precedent in the new law of 191 1, but has no reciprocal relations with the United States. As the opposition to the control by musical com- posers of mechanical reproductions of their works is still strong in the United States and in several coun- tries, notwithstanding recent conventions and legis- lation, and is based largely upon restrictive definitions of the words "writings" and "copies" or their equiva- lent in other languages, it may be well to include here the argument made by the writer as Vice-president of the American (Authors) Copyright League, at the Congressional hearings on the new American code, of which the essential portions are as follows : "The American Copyright League stands, as it has stood for a quarter of a century, simply and MECHANICAL MUSIC 215 solely for the protection of authors' rights to the fullest extent, and it asserts that a musical composer is as fully entitled as is the author of any other cre- ative work to the exclusive and full benefits of his compositions, in whatever manner reproduced. The opponents of the bill base their objections largely on a restrictive definition of the word 'writings,' and criticise the bill because this word 'writings' is in- terpreted throughout the bill by the word 'works,' although this accurately reflects the understanding of Congress and the interpretation of the courts. They would, in fact, confine copyright protection specifi- cally, it may be said, to e-y-e-deas, that is, visible records, and exclude as not visible or legible by the eye, copies of musical compositions mechanically made and interpreted. "The earliest writing which remains to us is in the Inscribed Assyrian wedge-shaped inscriptions, made by press- writings ing the end of a squared stick into a soft clay cylin- der; the phonograph point inscribes its record in exactly the same manner upon the ' wax ' or compo- sition of the cylinder or disc, for the mechanism only revolves the roll, and the point is actuated by the sound vibrations. The words 'phonograph,' 'grapho- phone' and 'gramophone' literally mean 'sound- writing,' for the Greek form graph-, the Latin form scrib-, and the Saxon form write, equally parts of our language, denote exactly the same meaning. It is even probable that a future development of phonograph impressions (the third dimension being translated into breadth of stroke as can be mechani- cally done) will give ultimately a visual phonograph alphabet even more natural and logical than Pro- fessor Bell's remarkable system of 'visible speech,' which, of course, like all alphabets, can be read only when the reader has mastered the significance of the 2i6 COPYRIGHT symbols. Mr. Edison has himself made some experi- ments in this direction, though the confusion from the overtones, which give quality of speech, has so Direct far prevented result. A large share of literary pro- sound-writ- ductivity to-day is by voice-dictation recorded me- '"^ chanically by a stenographer on the typewriter or directly on the phonograph disc, and I may instance from personal experience a further step. As one of the committee for the Edison birthday dinner, com- memorating the twenty-fifth anniversary of his in- vention of the incandescent lamp, I was asked to supply some original verse, and it occurred to me to put this in shape by help of Mr. Edison's inventions, without direct or indirect hand- or type- writing. Ac- cordingly I completed the verses mentally without use of paper and voiced them into an Edison phono- graph, verifying this through the telephone, and the lines were set in type by the printer from the sound- record, and thus printed on the menu for the dinner. Thus my formulated ideas were recorded through the nerves and other mechanism of the vocal organs, in- stead of through the nerves and other mechanism of the hand, directly by the phonograph point on the phonograph cylinder; and it seems a common-sense inference that if I had caused copies of the phono- graph cylinder, though not legible in the ordinary sense, to be published instead of the secondary copies in print, I should be as much entitled to copyright protection in the one case as in the other. The ' tele- graphone ' directly records on a steel tape the sounds of the human voice as sent through the telephone, and by an absolutely invisible re-arrangement of the magnetized particles of steel, makes a writing in which there is no possibility of visual legibility. Music trans- " Moreover, invention is now developing a series of «°issal reproducing mechanisms such as Dr. Cahill's 'tel- MECHANICAL MUSIC 217 harmonicon' or ' dynamophone,' in which musical compositions will be translated to the ear without the interposition even of a cylinder or disc sound-record ; and it seems a common-sense inference that the mu- sical composer should have as full rights in this as in other forms of copying or reproducing his thought. Buda-Pesth is said to have not only a telephone 'newspaper,' but a system of reading novels and other works of literature to telephone subscribers, and if this should reach such proportions as substan- tially to reduce the sale of the printed copies of a new novel from which the author would receive benefit, it would also seem a common-sense inference that the same or an equivalent royalty should be paid him. "In music writing or notation there are two and Music only two essentials: relative vertical position, show- notation ing pitch, and relative horizontal position, showing duration of notes. The earliest form of our present music writing is the system of the 'large,' 'long,' 'breve' and 'semi-breve' notes, in which the pitch was shown by the vertical relations of the notes, and the length of the note by the length of the black mark, the 'large' mark being twice the length of the 'long' mark. This corresponds closely to the perforated music roll of to-day, which could be read by a practiced eye with and probably without staff lines, to the extent that if every other form of repro- duction were destroyed, the melody and harmony of a musical work could be reproduced into the ordinary notation of music writing. I speak from personal knowledge of these music rolls, having had a me- chanical instrument for some years. The different kinds of rolls differ in the relative spacing and in dis- tance from the edge of the roll, which gives the stand- ard, but a foreshortened photograph of any, bringing them to the same scale, would pattern closely the 2i8 COPYRIGHT early form of music writing above cited. The London postal telegraph system dispatches newspaper ma- terial from St. Martin's le Grand throughout the kingdom from continuous perforated ribbons made somewhat in the same way, visible and legible only to an expert, and reproductions by the medium of this device would certainly not vitiate copyright. The law "It may be observed that the existing law gives to prior to 1909 the author or proprietor of a musical composition the sole liberty not only of printing, but of publishing, copying, vending, performing, or representing a mu- sical composition; that the statute does not restrict 'copying' either to a copy of 'staff notation' or from or in any particular form, but prohibits in general any copy of a musical composition; that there is no suggestion in the statute that the copy must be one to be read, e. g., a copy of a sculpture; that any sound-record is in the wide sense as truly a copy of a musical composition as a printed sheet, which is not a copy, in fact, of the author's manuscript writing ; and that as the roll has for its sole purpose the perform- ing by the aid of a mechanism useless without it, of a musical composition, just as a printed sheet of music has the sole purpose of the performing by the aid of the voice, the piano, or the orchestra, of a musical com- position, the maker and vendor of the roll is in ex- actly the same position as the maker or vendor of a printed sheet of music. Manuscript "But even if phonograph and perforated records and copies should not be considered, as is sculpture, to be ' writ- ings,' the arguments of the opponents of this bill do not fit the case. The Constitution explicitly provides that authors shall have exclusive rights to their writ- ings. This cannot mean exclusive rights to their written manuscripts, for these are protected by com- mon law and no constitutional provision was neces- MECHANICAL MUSIC 219 sary. It meant and means evidently that authors shall have exclusive rights to the benefits of their wiitings, the usufruct of the property they have created, and that means practically a monopoly con- trol over all copies or reproductions from such writ- ings, whether the copies are in handwriting, printing, or any other form. A musical score is definitely a writing, for it is even more than a literary manuscript, originally in the personal handwriting of the com- poser himself, without the intervention of a steno- grapher or a typewriting machine. Therefore, if the narrowest meaning of the word ' writings ' should be interpreted into the Constitution such as would ex- clude sculptures and other works which are admit- tedly proper and legal subjects of copyright, it would still specifically include musical and dramatic as well as literary manuscripts. There is no specification in the Constitution confining the exclusive rights over writings to copies in handwriting or print or any other stated process of reproduction ; in fact, the Constitu- tion does not use the word 'copyright' or in any way limit by specification the comprehensiveness of the exclusive rights Congress is thus authorized to secure. Indeed, Congress in the copyright laws has interpreted the Constitution to cover the several artistic or reproductive processes from time to time developed or invented; thus in the law of 1865 the provisions of the copyright laws were extended to include ' photographs,' which did not exist at the time of the adoption of the Constitution — which word specifically means ' light- writings ' as phonograph records specifically mean 'sound- writings.' "The position taken by the American Copyright Protection of League is that an author is literally entitled to the ^^ inventor exclusive right, that is, the exclusive benefit, in his writings, in whatever form the writings, that is, his 220 COPYRIGHT recorded thoughts, can be reproduced for sale or gain. If Mark Twain writes a book or Bronson Howard a play or Sousa or Victor Herbert a musical composi- tion or Millet makes a painting or French a statue, each is equally entitled to whatever benefit inures from his creative genius. Mr. Sousa has stated clearly that although Caruso has been paid I3000 — and the fact widely advertised — for singing into a phono- graph record, and his own band (not under his leader- ship) has also been paid for playing his compositions and those of others into the phonograph horn, he has never received as a musical composer one cent for such use of his creations, though from twenty to a hundred of his compositions are to be found on the catalogues of the several manufacturers of mechani- The counter cal instruments. Mr. J. Howlett Davis, who properly argument appeared as an inventor in defense of his own inven- tions in mechanical instruments, which he mistakenly believes would be rendered useless if the copyright protection were extended to sound-records, really asked that Congress should protect the thing which he had invented, and compel users to pay for it, but should permit him to use the thought which the mu- sical composer had invented and expressed, without paying for it. His argument analyzed presents an even stronger argument for the proposed copyright bill than for the protection of patented inventions. When Mr. Sousa buys a patented cornet he has paid for the use of it, but Mr. Sousa makes no claim either to make another cornet like it or to play copyrighted musical compositions for profit without payment or permission. A piano, a pianola, a music roll or new form of mechanism, is patentable; a musical composi- tion as played on a piano by hand or by mechanism, whether reproduced on a printed sheet or a mechani- cal roll, is copyrightable; but each should have like MECHANICAL MUSIC 221 protection. I speak from specific knowledge as one who has taken out patents as well as copyrights and as the active head for some years of the Edison Illu- minating Company of New York and a participant in successfully defending the Edison lamp patents. Mr. Edison, both as an inventor and as a manufac- turer of his own inventions, has profited much more than a million dollars from his patents, and would naturally be expected to be foremost in upholding the right of authors to payment for their brains." The acceptance by most countries within the Inter- Complete national Copyright Union of the Berlin convention, protection without reservation on this question of mechanical music, sets an example of complete protection of the musical composer which it is hoped may be ultimately adopted by the United States as well as by other countries. XIII Threefold value in art works ARTISTIC COPYRIGHT The artist-author, by the labor of his brain and hand, produces three classes of property right or a threefold value: he receives recompense from the sale of the original work made by his hand, or from the exhibition of it, or from the reproduction and sale of copies. The new American code is perhaps in advance of legisla- tion in any other country in the protection of the artist, for it assures to him separate values in the right to sell his work and the right to reproduce and sell copies, neither one of which rights is necessarily trans- ferred with the other ; it enables him to copyright his original work before the reproduction of copies, though it does not make absolutely clear whether the exhibi- tion without restriction of an uncopyrighted work results in dedication ; and it protects his right to con- trol and profit from reproductions, with the simplest possible copyright notice, not including date, though as to lithographic and photo-engraving reproductions it requires manufacture in this country. The literary, dramatic or musical author produces no value in the original work itself, except as his fame may ultimately make his manuscript valuable as an autograph, and in this respect the artist-author has an advantage of practical importance in the general provision separat- ing the copyright from the right in the material object. On the other hand, show-right or right of exhibition is not as specifically treated or as clearly defined and protected as is playright or light of per- formance in the case of drama or music. ARTISTIC 223 The copyright of works of the fine arts and cognate American works is specifically provided for in the code of 1909 Provisions by including as subject-matter of copyright (sec. 5) the following divisions: " (f) Maps; (g) Works of art; models or designs for works of art ; (h) Reproductions of a work of art; (i) Drawings or plastic works of a scientific or technical character; (j) Photographs; (k) Prints and pictorial illustrations." It is not in- tended to include under subsection (k) labels or prints of advertising or commercial character which may be registered as trade-marks under the Trade-Mark law in the Patent Office. The proprietor of a work of art is given in addition to the general rights (sec. i, a) the specific rights (sec. i , b) " to complete, execute, and finish it if it be a model or design for a work of art." The new Coypright Office Rules and Regulations, Copyright promulgated 1910, define these classifications in the O&ce classi- r ,, ■ , fication defi- followmg language: _ ^itio^s "11. (/) Maps. — This term includes all carto- graphical works, such as terrestrial maps, plats, marine charts, star maps, but not diagrams, astrological charts, landscapes, or drawings of imaginary regions which do not have a real existence. " 12. (g) Works of art. — This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture.) "Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented. "No copyright exists in toys, games, dolls, adver- tising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fab- rics, or any similar articles. "13. (h) Reproductions of works of art. — This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an 224 COPYRIGHT artistic element distinct from that of the original work of art which has been reproduced. " 14. (i) Drawings or plastic works of a scientific or technical character. — This term includes diagrams or models illustrating scientific or technical works, archi- tects' plans, designs for engineering work, etc. " 15- 0) Photographs. — This term covers all posi- tive prints from photographic negatives, including those from moving-picture films (the entire series being counted as a single photograph), but not photo- gravures, half tones, and other photo-engravings. "16. {k) Prints and pictorial illustrations. — This term comprises all printed pictures not included in the various other classes enumerated above. "Articles of utilitarian purpose do not become capable of copyright registration because they consist in part of pictures which in themselves are copyright- able, e. g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or simi- lar articles. " Postal cards cannot be copyrighted as such. The pictures thereon may be registered as ' prints or pic- torial illustrations' or as 'photographs.' Text mat- ter on a postal card may be of such a character that it may be registered as a ' book.' "Mere ornamental scrolls, combinations of lines and colors, decorative borders, and similar designs, or ornamental letters or forms of type are not included in the designation 'prints and pictorial illustrations.' Trademarks cannot be copyrighted nor registered in the Copyright Office." The question The new law does not specifically make clear the of exhibition relation between the exhibition of works of art and publication, or define whether or not exhibition may constitute dedication to the public and thus prevent the protection of the copyright thereafter. But in ARTISTIC 225 making copyright a sequent to publication (sec. 9) and providing (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," it makes it at least probable that the author of an artistic or cognate work who simply exhibits, does not surrender the right to copyright. The trend of the courts in recent decisions has been, as in the Werkmeister case, cited below, to protect exhibited works, at least where any reservation of rights could be construed into the cir- cumstances of the exhibition ; but it is still uncertain whether the exhibition of a work of art at a public museum where there is no regulation against copying or reservation by the artist, might not constitute a dedication and thus prevent later copyright. In providing however (sec. 11) specifically "that Protection of copyright may also be had of the works of an author nnpublished of which copies are not reproduced for sale, by the deposit, with claim of copyright ... of a photo- graphic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing," it gives to the artist or the author of a cognate work an easy means of protecting his production beyond question; and he is not wise who neglects the simple precaution provided in the law. It is not made absolutely clear in the new law Copyright whether the copyright notice must be attached to the '"'**''® original of a work of art; but again the provision for protection is so simple that it is wise to take advan- tage of the method of the law, by placing the copy- right notice on the original. The copyright notice may be in the form (sec. 18) "'Copyright' or the abbreviation 'Copr.' accompanied by the name of 226 COPYRIGHT the copyright proprietor," the year of publication not being required in the case of an artistic work. It is further provided that "in the case of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: (c), accom- panied by the initials, monogram, mark, or symbol of the copyright proprietor : Provided, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear." If the copyright notice is attached to the original, it is not made clear whether it should be on the face of the work and visible to the casual spectator; but again the wise artist will take an easy precaution. Deposit It is further required (sec. 12) that "if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other iden- tifying reproduction " required as above stated, "ac- companied in each case by a claim of copyright." The new Copyright Ofifice Rules and Regulations schedule (17) among unpublished works that may be registered " (c) photographic prints; {d) works of art (paintings, drawings, and sculpture), and (e) plastic works," and states specifically as to the deposit in such cases: "19. (2) In the case of photographs, deposit one copy of a positive print of the work. (Photo-engrav- ings or photogravures are not photographs within the meaning of this provision.) "20. (3) In the case of works of art, models or de- signs for works of art, or drawings or plastic works of a scientific or technical character, deposit a photo- graphic reproduction." As deposit in the case of an unpublished work ARTISTIC 227 takes the place of publication and deposit in the case of works reproduced for sale, there can be no claim for statutory protection of an unpublished work of art without the deposit of the identifying copy, and the general provision (sec. 13) for fine and for voiding of copyright in the case of non-deposit, has, of course, no bearing on unpublished works. Any action or pro- ceeding in respect to an unpublished work not regis- tered by deposit must therefore be under common law and not under statutory provision. To sum up, the author of a work of art, who is ex- Siumnary hibiting his painting or statue or other work and not °* require- multiplying copies for sale, will assure himself of full protection if before such exhibition he places on the original work, in some visible but not obtrusive fashion, the letter C inclosed in a cirple with his name or mark, and deposits a photograph of such work with the Librarian of Congress or in the mails ad- dressed to him, accompanied by a claim of copyright, — for which an application form {]^, "photograph not reproduced for sale") is furnished on request, by the Copyright Office from Washington, — with inclosure of one dollar. As soon as the artist multiplies copies for sale, or permits reproduction of his work, as in a newspaper report of an exhibition, for instance, he must then take the precaution of depositing two copies of such reproduction as provided in general by the act, and it is further provided (sec. 18) "that on some acces- sible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear." In case two copies are not so deposited, it is probable that a fine and forfeiture of copyright would ultimately ensue, as indicated in section 13. It is specifically provided (sec. 41) that copyright 228 COPYRIGHT Material and immaterial properties , distinct Manufactur- ing clause covers litho- graphs and photo-en- gravings Foreign subjects excepted is distinct from the property in the material object, which accompHshes for the artist the important re- sult that when he sells his painting he does not trans- fer the copyright, but retains that for himself unless he specifically contracts with the buyer to include in the sale the copyright or the right to copyright. This adopts into the law the decision of the courts that copyright does not pass with a painting unless dis- tinctly included in the transfer. The provision (sec. 41) is specific that the copyright "is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a trans- fer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object." Thus the author of a work of art has two separate properties, the painting, statue or other work in itself, on the one hand, and the copy- right or the right to copyright on the other, neither of which is transferred by the transfer of the other unless both are specifically included in the transfer. The copyright in certain classes of reproductions of works of art is dependent however on manufacture in this country, as in the case of books. This provision no longer includes photographs as in the preceding law, but is confined specifically (sec. 15) to "text produced by lithographic process, or photo-engraving process," "illustrations within a book consisting of printed text and illustrations produced by litho- graphic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art." It is further pro- vided that "in the case of the book ... if the text be produced by lithographic process, or photo-en- ARTISTIC 229 graving process . . . the copies so deposited shall be accompanied by an afifidavit . . . that such process was wholly performed within the limits of the United States." This affidavit, therefore, is not required in the case of separate lithographs or photo-engrav- ings. The manufacturing provisions chiefly concern the publishers of books, but they imply that artists cannot send works abroad to have reproductions made. But by the opinion of January 9, 191 1, ap- proved by the Attorney-General, a design, drawing, or painting made and located abroad intended as " the first step" for lithographic reproduction, may be registered, if a "work of art" — which question of fact is to be determined by the Register of Copy- rights ; and such lithographic reproductions of it may be imported. It was held by the Attorney-General January 27, Geiman 1910, that lithographic reproductions of original paint- post-cards ings in the form of illustrated post-cards made in Germany, are subject to registration, provided the original paintings may properly be classified as works of art ; and thus importation of such post-cards would be permissible. While there must be originality in a work of art. Artistic merit especially under English law, this means little more unimportant than a prohibition of actual copying, and as in the case of literary and dramatic works, artistic merit is of little importance. The Copyright Office furnishes without charge ap- Application plication forms, lettered as indicated, for the follow- *'"™® ing classes of art works: (F) published map; (G) work of art (painting, drawing, or sculpture) ; or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or tech- nical character ; (JO photograph published for sale, (JO photograph not reproduced for sale; (K) print or pic- 230 COPYRIGHT Certificates Teimin unpublished work Date not required tonal illustration. Thus the applicant should send for application blank (G), if for an original work of art, (H), if for a reproduction, or the proper blank in the other specified cases. But it should be noted that it is both unnecessary and undesirable to apply separately under different blanks as (G) and (H), since the single copyright on the original work covers reproductions. Certificates are returned by the Copyright Office on receipt of the appUcation form and of the statutory fee of one dollar, covering the same specified subjects. When an original work of art is copyrighted, but is not published by reproduction of copies for sale or distribution, it is uncertain under the law, as in the case of dramatic and musical compositions, from what date the copyright protection runs and whether the sole right of reproducing copies for sale terminates at the end of a statutory term beginning with the registration of the original work or with its publi- cation by the reproduction of copies for sale. The Copyright Office issues a certificate of the registra- tion of the original work as covering a period of twenty-eight years and will doubtless base a renewal on the termination of this term; and only a court decision will determine whether the copyright of the original unpublished work exists in perpetuity until publication or whether the right to reproduce copies for sale lapses with the termination of twenty-eight or fifty-six years from the registration of the original work. The omission of the requirement of date in the copyright notice in the case of a work of art is signi- ficant and important, although it has the disadvan- tage that knowledge of the expiration of the term of copyright can be had only by specific inquiry from the Copyright Office. It has been the mistaken prac- tice of more than one artist, under the old law, to enter ARTISTIC 231 copyright on his original sketch or on his original Re-copyright work under date of its beginning, again on the fin- objectionable ished original under date of its completion, and pos- sibly again on reproductions under the date of the first publication of copies; and when also the artist changed the name of his work under these progres- sions, confusion became worse confounded. From this superfluous zeal and mistaken carefulness, seri- ous results have come, as in Caliga v.. Inter-Ocean Newspaper Co., decided in 1909 by the U. S. Supreme Court through Justice Day, wherein an artist failed to protect himself against an infringing reproduction, because he brought suit under a "second copyright which he had entered on finishing his picture, instead of under the original and lawful copyright, under which he had originally entered his work. The fact that by this second copyrighting he laid claim to a longer term than the law allowed, made the second copyright void and a suit under it of no avail. Under the new law the author of a work of art is not only given speci- fically the exclusive right "to complete, execute, and finish it if it be a model or design for a work of art " as in the previous law, so that an artistic work is pro- tected by one copyright from design to completion and reproduction; but he may also protect his original work during its progress or exhibition before publica- tion and thus safeguard his future right to control and benefit from the multiplication of copies. In case of the sale of the original work of art, the Exhibition right to exhibit, of course, passes with the original, ristt transfer although the right to copyright and reproduce copies is expressly reserved to the artist. In view of the un- certainty whether the unrestricted public exhibition of a work of art constitutes dedication and prevents copyright thereof, the carelessness of the purchaser of the original might raise question as to the validity of 232 COPYRIGHT later copyright of reproductions by the artist. It is therefore unwise for an artist to sell the original of a work of art without affixing to it the required copy- right notice and depositing one copy of an identifying photograph or print. Early Eng- The leading case under English law as to exhibition lish decision ig that of Turner v. Robinson in the Irish Court of Chancery in i860, previous to the passage of the act of 1862 which first provided statutory copyright for paintings, and interpretative therefore of common law. Turner's "Death of Chatterton" had been re- produced in a magazine and exhibited at the Royal Academy and in Manchester, and was thereafter ex- hibited for the purpose of obtaining subscriptions for an engraving, in Dublin, where a photographer copied it and published a stereoscopic reproduction. The Master of the Rolls held that the painting had never been published because the exhibitions were on condi- tion that no copies should be made, and the engraving in the magazine was only a rough representation and not a publication of the picture. The Court of Appeal also held against the defendant, but because of his breach of contract, and declined to decide whether there had been publication in London or Manchester. The Lord Chancellor, however, expressed the opinion that exhibition at the Academy, though conditioned, was publication, though a private view in a studio, rather than a picture gallery would not be. The Court of Appeal did not pass on the further opinion of the Master of the Rolls that the publication of a print was not publication of the picture. These con- fusing opinions left the question in very misty shape and the most important interpretation of English practice has come from an American court. The latest and leading case as to exhibition is that of Werckmeister v. American Lithograph Co., ARTISTIC 233 'American Tobacco Co.,et al. , which was decided by the The Werck- U. S. Supreme Court in 1907, in an opinion written by meister lead- Justice Day. The English artist Sadler had sold, in *^^ *^^^ 1894, to Werckmeister of the Berlin Photographic Co. the copyright in his picture "Chorus," which he ex- hibited at the Royal Academy Exhibition of 1894, and the design had been reproduced by the American Lithograph Co. for use on an American Tobacco Co. label, though the photograph had been given protec- tion by copyright. In reply to the claim of the in- fringers that such exhibition constituted dedication to the public, the Supreme Court's decision quoted from Slater on "The law relating to copyright and trade-marks." " It is a fundamental rule that to constitute publi- u, S. cation there must be such a dissemination of the Supreme work of art itself among the public as to justify the ^^^^^j^ belief that it took place with the intention of render- ing such work common property," the court adding, "and that author instances as one of the occasions that does not amount to a general publication the exhibition of a work of art at a public exhibition where there are by-laws against copies or where it is tacitly understood that no copying shall take place, and the public are admitted to view the painting on the implied understanding that no improper advan- tage will be taken of the privilege. We think this doctrine is sound and the result of the best considered cases." The court said further: "We do not mean to say that the public exhibition of a painting or statue where all might see and freely copy it might not amount to publication within the statute, regard- less of the artist's purpose or notice of reservation of rights which he takes no measure to protect." In fact, in Pierce & Bushnell Co. v. Werckmeister, in 1896, the U. S. Circuit Court of Appeals, through 234 COPYRIGHT Unrestricted exhibition hazardous Reservation on sale Publication construed Judge Colt, had held that the exhibition of Naujok's painting of St. Cecilia, in Berlin and Munich, without copyright notice on the original work, constituted publication and dedication, and therefore denied pro- tection to photographic copies thereafter copyrighted and published. That the sale of the original work of art as a ma- terial object does not involve the transfer of the copy- right is a direct application in the new American code of previous judicial decisions. In Werckmeister v. Springer Lith. Co., in 1894, where the defense con- tended that the purchaser of a painting was the per- son authorized to become the copyright proprietor, this contention was absolutely overruled, in the U. S. Circuit Court in New York, by Judge Townsend. But it may nevertheless be desirable to include in any con- tract of sale a specific reservation of copyright, espe- cially in the case of works executed for public authori- ties or to be exhibited in a public place. In Dielman V. White, in 1900, Judge Lowell in the U. S. Circuit Court in Massachusetts declined to enjoin a photo- graph of certain mosaics by Dielman in the Library of Congress, the original cartoon for which as sent to Venice, as well as the mosaic work itself, bore copy- right notice, on the ground that the correspondence with the government constituting the contract, did not clearly reserve to the artist the right to copyright and prevent copying, — though this decision may be questioned. The courts are disposed to limit the definition of publication to insure the fullest protection of an au- thor's right. In Werckmeister z;. Springer Lith. Co. it was further held by Judge Townsend that the printing in an exhibition catalogue of a cut of a painting was for the information of patrons and was not publication. In the same case the defense contended that the sale of ARTISTIC 235 an earlier replica of the plaintiff's painting consti- tuted a publication and forfeited copyright, but the court held that the replica was not a copy but was made beforehand to assist in the preparation of the painting afterward copyrighted, and that there was no publication. In Falk v. Gast, in 1893, where the defense claimed that the copyright notice was omitted from published copies, referring to a sample sheet of miniature repro- ductions sent to dealers for their information and convenience, the U. S. Circuit Court of Appeals, through Judge Shipman, held that this issue of sam- ple sheets did not constitute publication. This doc- trine of limitation had a curious application in Harper V. Shoppell, in 1886, in which Judge Wallace, in the U. S. District Court, held, where an electrotyper had sold to a third party an unauthorized electrotype of a copyrighted illustration, that the copyright law w£is not violated because the illustration had not been printed or published. The artist-author or the proprietor of an artistic Danger of copyright should be most careful to comply with the forfeiture statutory requirements as to notice and other formal- ities, as otherwise copyright may be forfeited. Several court decisions indicate that the copyright notice should be placed on the original when exhibited, even if copies are not then reproduced for sale; and as the question is not made quite clear in the new code, it is wise to follow this indication. In the original trial in 1902 of the Werckmeister case, Judge Thomas in the U. S. Circuit Court held that the omission of copy- right notice from the exhibited original waived the copyright, but his decision of the case was reversed by the U. S. Supreme Court on other grounds as pre- viously stated, and this particular point remains un- settled. 236 COPYRIGHT Copyright is not forfeited where a notice properly affixed has been omitted in later use beyond the con- trol of the copyright proprietor. " If copied after- wards or put upon a new mount the complainant should not suffer," said Judge Coxe in Falk v. Cast in reference to copies from which the notice had been separated. In Bennett v. Carr, in 1899, the U. S. Circuit Court of Appeals, through Judge Thomas, non- suited the complainant because he had not deposited a written description, in addition to filing identifying copies, both formalities being required under the old law. Limited use The principle is especially important regarding and Ucense works of art that a copyright proprietor may grant specific license for the limited use of his work; and this has many times been upheld by judicial decisions. In the American courts, such cases have usually been settled by preliminary injunction, without further trial, so that most of the cases are unreported in the law digests, as in that of Miles v. American News Co., in 1898, where General Miles obtained a preliminary injunction restraining the distribution by the de- fendants of " Remington's frontier sketches," includ- ing illustrations made for and copyrighted in General Miles' "Personal recollections." In the English case of Nicholls V. Parker, in 1901, it was held that a license to print illustrations in the Graphic did not permit their use in another periodical of the defendant de- spite the defense of "custom of the trade," which the judge characterized as "ridiculous." In the import- ant case of Green v. Irish Independent, the Court of Appeal held that the newspaper, though acting "in good faith and without knowledge," was guilty of in- fringement in printing an illustration sent to it as an advertisement which the proprietor had not licensed for such use. Where, in Guggenheim v. Leng, in ARTISTIC 237 1896, the periodical Sports printed and sold as a separate sheet an illustration licensed for use in the periodical, it was held in the Queen's Bench Division that publication and sale of the supplement sepa- rately from the paper was beyond the terms of the license and therefore an infringement. Copyright in a work of art is dependent upon char- Character, acter rather than use. "A picture is none the less a not method pictureandnonethelessasubjectof copyright that it ° "** is used for an advertisement," said Justice Holmes in the U. S. Supreme Court, in Bleistein v. Donaldson Lith. Co., in 1903, the leading case on this subject, in which three lithographs designed for a circus poster were protected. In Mott v. Clow, in 1896, Judge Grosscup in the U. S. Circuit Court in Illinois had held that illustrations, in this instance of bathtubs in a trade catalogue, which "are mere advertisements," are not entitled to copyright; and in Schumacher v. Wogram, in 1888, it had been held by Judge Wallace that a picture of a young woman holding a bouquet intended for a cigar label could not be protected as copyright, but should be registered as a trade-mark. "The distinction here," said Judge Wallace, "seems to be that a picture expressly intended as a label should be considered a trade-mark, though a picture which may be used for a label is not for this reason excluded from copyright." An artistic design for paper-box covers was held copyrightable in 1910 in De Jonge v. Breuker & Kessler, in the U. S. Circuit Court, by Judge McPherson, who also held that the same subject could not be protected both under copy- right and as trade-mark. That an illustration of a person, incident or scene niustratioii in a copyright work is not an infringement of its copy- right, was indicated in 1909 in Harper v. Kalem Co., in the opinion of the U. S. Circuit Court of Appeals in 238 COPYRIGHT Description of artistic work Portraits New York, through Judge Ward, who said: "As pic- tures only represent the artist's idea of what the author has expressed in words, they do not infringe a copyrighted book or drama and should not be en- joined." That illustrations may be protected as part of a book without reference to tiie engravings act,was held in Marshall v. Bull, in 1901, in the English Court of Appeal, which held also that though electrotype blocks had been legally sold, unauthorized reproduc- tion from such blocks constituted infringement. Likewise, a. description in words of a copyrighted work of art is probably permissible without infringe- ment of copyright, when the work is published or publicly exhibited. But this does not hold good in the case of an unpublished or privately exhibited work, as was held in 1849 in the case of Prince Albert v. Strange, where a descriptive catalogue of unpublished etchings by Queen Victoria and the Prince Consort was enjoined, as well as the exhibition of prints there- from unlawfully obtained. In the case of portraits, whether by painting, sculp- ture or photography, an important question as to ownership arises. A portrait paid for by the subject or a person other than the artist is the property, for copyright as well as other purposes, exclusively of that person; but if an artist produces a portrait at his own expense, even if by the suggestion of another person, the right to copyright remains with the artist. The general principle was best stated by Judge Wheeler in 1894, in the U. S. Circuit Court in New York, in Press Pub. Co. v. Falk, where the World was held to have infringed the copyright in the photo- graph of an actress, copyrighted by the photographer and not paid for by her, though a complimentary copy, given to the actress, had been sent by her to the newspaper. "When a person has a negative taken ARTISTIC 239 and photograph made, for pay, in the usual course, the work is done for the person so procuring it to be done, and the negative, so far as it is a picture or capable of producing pictures of that person, and all photographs made from it, belong to that person; and neither the artist nor any one else has any right to make pictures from the negative or copy the photo- graphs, if not otherwise published, for any one else. But when a person submits himself or herself as a public character to a photographer for the taking of a negative, and the making of photographs therefrom for the photographer, the negative and the right to make photographs from it belong to him. He is the author and proprietor of the photograph, and may perfect the exclusive right to make copies by copy- right." The same principle was upheld in the closely similar English case of Ellis v. Ogden, in 1894, by Justice Collins in the Queen's Bench Division. But in the case of Ellis v. Marshall, in 1895, Justice Charles in the same court held that where two actors had been invited by a photographer to sit for him in costume and some photographs had also been taken in plain clothes, of which the actors purchased copies, they were entitled to authorize publication in a magazine. It may be noted that New York and other states have statutes forbidding portraiture of persons without their consent; but this prohibition would probably not apply to photographing of a crowd, unless the por- trait of a special person were lifted out or made prom- inent. A photographer may not exhibit a photograph of a patron, as in his shop window, without the sitter's consent. The employer of an artist in other work as well as Right of portraiture may become ipse facto the copyright pro- employer prietor. In 1871, in Stannard v. Harrison, where a wall map had been made by an engraver from rough 240 COPYRIGHT sketch and material and from directions given by the plaintiff, the English Court of Chancery, through Vice-Chancellor Bacon, held: "That the plaintiff can- not draw himself is a matter wholly unimportant if he has caused other persons to draw for him. He invents the subject of the design beyond all question . . . this is a work of diligence, industry, and for aught I know of genius on the part of the plaintiff." This case, which arose under the engravings acts in Eng- land, where an engraving may be copyrighted by an employer, — though the engraver of his own original design is the only person entitled to copyright, — is of wide bearing throughout artistic copyright. On the other hand, in 1898, in Bolton v. London Exhibitions Co., Justice Mathew in the Queen's Bench Division held that the employer, who had given to the en- graver only a "general idea" of what he desired, was not the party liable for infringement. Photographs Photographs, a modern development since the early copyright laws, were first included with nega- tives in the American act of 1865, in respect to which the action of Congress was upheld by the U. S. Su- preme Court in 1884 in the decisive case of Burrow- Giles Lith. Co. V. Sarony, and in the English fine arts copyright act of 1862. They are specifically named (sec. 5, j) in the new American code, and are included specifically or impliedly under copyright protection in most countries. The peculiar circumstance that the skill of the photographic artist is not necessarily shown in the composition of the picture taken, but more usually in the selection of subject or point of view and treatment in the process, leads to complexi- ties as to authorship, ownership, etc. It is unneces- sary and indeed undesirable to copyright separately a photograph of a copyrighted work, of which the general copyright is comprehensive of all reproduc- ARTISTIC 241 tions, but the original copyright notice including the name of the artist must appear on each photograph or its mount. An original photograph of an uncopy- righted or uncopyrigh table subject may be copy- righted as a photograph, as was held with respect to natural scenery in 1903, in Cleland v. Thayer, in the U. S. Circuit Court of Appeals, where a colored photo- graph of a Colorado pass was protected. Where a pho- tographer had posed a woman and a child characteris- tically. Judge Wheeler in the U. S. Circuit Court in New York held, in 1891, in Falk v. Brett Lith. Co., where defendant had merely reversed the photograph in a lithographic reprint, that the photograph was copy- rightable and that the photographer was the author. And this doctrine, that the posing and treatment of a photograph subject gave justification for copyright, was also upheld in the case of a portrait of an actress in the same year in Falk v. Gast by Judge Coxe. In the English case of Bolton v. Aldin et al., in 1895, Justice Grantham in the Queen's Bench Division held that the photograph of a tiger was infringed by a drawing from the photograph published in the Sketch magazine. But the copyrighting of a photograph of an uncopyrighted subject cannot prevent the photo- graphing of the same subject independently by others, nor can the use of a "general idea" be pre- vented. Under the new American code, the fee for registering a photograph is but fifty cents, if a certi- ficate is not desired, and the new Copyright Ofifice Rules hold that in moving picture films only one registration is requisite, " the entire series being counted as a single photograph." Whether living pictures, tableaux vivants, infringe a Tableaux work of art, is a difficult question, determinable only vivants by the circumstances of each case. Moving pictures ^tures™*^ telling a dramatic story may infringe a dramatic or 242 COPYRIGHT Exclusions and inclu- sions con- strued Architectural works even literary work, as well as possibly a work of art, as was decided in the case of Harper v. Kalem Co. But the House of Lords, in 1 894, in the case of Hanf staengl V. Baines, where the proprietor of the copyright in paintings sued the proprietors of the Graphic for re- producing by sketches living pictures exhibited at a music hall, patterned after the paintings, decided that the word "design" in the English law did not cover the tableaux at the music hall. It is probable, however, that an exact reproduction, as nearly as may be, of a painting at a public place, might be held an infringement. In 1903 the Circuit Court of Ap- peals through Judge Bufi&ngton, in Edison v. Lubin, overruled the defense that each picture making up a moving picture series should be separately regis- tered for copyright. But separable parts of a com- posite design, when used separately, must bear sepa- rate copyright notice, as was held in 1910 in De Jonge V. Breuker & Kessler by Judge McPherson in the U. S. Circuit Court. A shadow-trick perforated card, giving an outline of the picture "Ecce Homo" when held between a light and a screen, was held by Vice-Chancellor Bacon, in Cable v. Marks, in 1882, not to be subject of copyright. Playing cards have been included as prints by an English decision. Architectural works are not protected as such under the American code, the decision of the Congres- sional Committees being adverse to this proposal. They are specifically included in the new British code. It is possible that they might be included under the general designation of works of art, and drawings or models for buildings might be copyrighted as "drawings or plastic works of a scientific or technical character." The question, however, is one of much doubt. In 1903, in Wright v. Eisle, the Appellate ARTISTIC 243 Division of the N. Y. Supreme Court, through Judge Woodward, held, where an architect had filed plans with the building department which he claimed were copied in a house of the defendant, which plans had not been copyrighted, that the filing of the plans in a public office constituted publication and as there were no copyrighted copies, there was no case at common or copyright law. A copy of a copy is an infringement of the original Copy of a work and incidentally of the direct copy, unless the ^"^J latter is published without proper copyright notice by authority of the proprietor of copyright in the orig- inal. This was held in 1892, in Lucas v. Williams, by the Queen's Bench, where a photograph from an engraving was held an infringement of the original painting; and the decision of Judge McPherson in the U. S. Circuit Court in Pennsylvania non-suiting, in Champney v. Haag, in 1903, the proprietor of a copy- right painting because the offending photograph in- fringed only the copyrighted photograph from which it was directly taken, is not considered good law. A photograph may infringe the copyright in statuary, as was held in 1907, in Bracken v. Rosenthal, in the U. S. Circuit Court. As to altered copies and alterations, there have Alterations been many judicial decisions, the gist of which is that a copy is not less an infringement because it alters details, provided there is copying of a substantial part ; that a copy in another medium not exactly re- producing the original or a copy of it, is nevertheless an infringement; that a substantial alteration, or adaptation of an existing work, may in itself be copy- rightable, but that slight alterations will not justify the copyrighting of a work in the public domain ; and that an artist has the right to prevent alteration of his original work by a subsequent owner, as involving 244 COPYRIGHT Alterations damage to his professional reputation. Where a copyrighted portrait of Lillian Russell was combined with a portrait of another actress, the composite pho- tograph was held to be a violation of the copyright, in Springer Lith. Co. v. Falk, in 1894, by the U. S. Circuit Court of Appeals, through Judge Lacombe. So in the English case of Bolton v. London Exhibitions Co., in 1898, where a lithographer copied the out- line of a lion from a copyrighted photograph, and filled in details from natural histories in making a circus poster. Justice Mathew in the Queen's Bench Division held that there had been reproduction of the photograph and that a work of art had been "vulgarized unlawfully." Where certain etchings and engravings had been copied by the Brooklyn Photogravure Co., omitting the tints, plate mark and title, it was held in 1892, in Fishel v. Lueckel, by Judge Townsend in the U. S. Circuit Court in New York that this was an infringement; said Judge Townsend: "The appropriation of a part of the work is no less an infringement than the appropriation of the whole, provided 'the alleged infringing part contains any substantial repetitions of any material parts which are original and distinctive.'" And where a photo- graph of Julia Marlowe was reproduced in a litho- graph, with many points of dissimilarity, some of them because of difference in process, it was held in Falk V. Donaldson Lith. Co., in 1893, by Judge Town- send in the U. S. Circuit Court in New York, that the differences did not constitute a defense. In Dr. Gaunsaulus's book, "The Man of Galilee," well-known pictures were altered substantially and artistically, as by the omission of a spinning wheel from a picture of the Nativity. Copies made from these illustrations were enjoined, though the original pictures were non- copyrighted, in Monarch Book Co. v. Neil, in 1900, by ARTISTIC 245 Judge Grosscup in the U. S. Circuit Court in Illinois. But a slight alteration, by the addition on the nega- tive of a cane, thus put into the hands of a person in a photograph not copyrighted in its original form, was held not to justify copyright, in Snow v. Laird, in 1900, by Judge Woods in the U. S. Circuit Court of Appeals. In the N. Y. Supreme Court, in the common law case of Dodge V. Allied Arts Co., in 1903, where the plain- tiff had painted four historical scenes on commis- sion which the defendants proposed to have altered, an injunction pending suit was granted by Judge McCall, thus upholding the common law or equity right of an artist to be protected against such misuse of his work. For the infringement of a work of art the copyright Remedies proprietor is entitled (sec. 25) to an injunction, the forfeiture of infringing copies and to damages "as well as all the profits ... or in lieu of actual dam- ages and profits such damages as to the court shall ap- pear to be just," not less than $250 nor more than $5000, except that "in the case of a newspaper repro- duction of a copyrighted photograph such damages shall not exceed $200 nor be less than $50." These damages, within the limits stated, may be assessed by the court in the case of painting, statue or sculpture at ten dollars, and in the case of any other works at one dollar, " for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees." Under the old law, damages were confined to copies found in possession, and the courts were constrained to apply this literally though in several recorded cases with evident injustice. Copyright in artistic works in the United States Artistic copy- has always been covered under the general copy- "gtttenn right acts, including the code of 1909 providing for copyright for twenty-eight and renewal for a second 246 COPYRIGHT twenty-eight years, and this is true also in Canada and Newfoundland, where the term is for twenty-eight with renewal for fourteen years. The Australian code of 1905 covers artistic copyright specifically in part IV of the act, which provides for the general term of forty- two years from "the making of the work" or life and seven years, whichever the longer, but confines it to artistic work "which is made in Australia." British Artistic copyright in Great Britain, on the contrary, practice j^^g been protected by several concurrent acts begin- ning with the engraving copyright acts of 1734 and 1767 and including the prints copyright act of 1777, the sculpture copyright act of 18 14, the prints and engravings copyright (Ireland) act of 1836 and the fine arts copyright act of 1862 covering paintings, drawings and photographs, previously unprotected, — all forming part of the English law until repealed by the new code. Under these several laws, the copyright term for paintings, drawings and photo- graphs has been the life of the author and seven years, for engravings twenty-eight years from first publication and for sculpture fourteen years from first publishing and renewal for fourteen years. Under the act of 1862 — which did not afford pro- tection outside the United Kingdom, as was affirmed by the Privy Council in 1903, upholding a Canadian decision, in Graves v. Gorrie — copyright in artistic works began with the making of the work wherever made (except that a foreigner must be resident in England apparently at the time of making) and did not depend upon publication; but the international copyright act of 1844 nevertheless denied protection in Great Britain where a work was first published in a country outside of treaty relations. Registration at Stationers' Hall, at a cost of one shilling, has been a prerequisite to protection. The right to copyright ARTISTIC 247 lapsed when the original work was sold by the artist without previous registration or written reservation, a provision applied in 1909 in Hunter v. Clifford. An original work of sculpture was protected only if Sculpture first published within the British dominions, if by a provisions British subject or resident, provided it bore the pro- prietor's name and date of first publication; and re- newal for a second fourteen years was possible only if the author was then alive and held the copyright. Toy soldiers, artistically modeled, were protected in England as a work of sculpture by Justice Wright in Britain v. Hanks, in 1902. Common law protected until and statute law after publication, i. e. when the public in general is first permitted to view the work. An engraving was protected in Great Britain and Engraving Ireland, if first published (and probably also made) provisions within the British dominions, provided it bore the proprietor's name and date of publication. Prints, as by lithography or otherwise, were included with engravings; maps, charts and plans were, however, included as books under the general copyright act. Also engravings which are part of a book enjoy the wider protection of the general copyright act. The sale of the plate of an engraving probably does not transfer the copyright, unless intention to do so is clearly evident. The new British code includes as an "artistic work " The new under the general copyright provisions, "works of British code painting, drawing, sculpture and artistic craftsman- ship, and architectural works of art and engrav- ings and photographs." Architectural works are protected only as regards artistic character or design as distinguished from process or methods of con- struction. Photographs have the exceptional term of fifty years from the making of the original negative, and the owner of such negative at the time of making 248 COPYRIGHT is considered the author. Registration is no longer required. Foreign Works of art are protected in most foreign coun- countries ^jgg either impliedly or specifically under general copyright legislation, although sometimes by special laws. France covers artistic works ' ' whatever may be the merit, use or destination of the work"; the Scan- dinavian countries include specifically drawings, etc., "not works of the fine arts"; in India copyright is extended in industrial designs to "some peculiar shape or form given an article, but not the article itself." Architectural works are protected in France, Luxemburg and Brazil, but in most countries only architectural plans, drawings, designs, figures, or models and not buildings are covered. Geographi- cal and topographical drawings and technical draw- ings, maps and charts, illustrations, engravings, in some cases lithographs, photographs, and negatives are among classes specified in many countries. In some countries the term of copyright is different in the case of artistic works. Luxemburg has the pecu- liar provision that portraits may not be reproduced until twenty years after the death of the person por- trayed. Photographs are in several countries pro- tected for a shorter term, frequently five years from taking, publication or registration as the case may be; in Norway the copyright may not extend beyond the death of the photographer. Berne con- When the International Copyright Union was Tention,i886 created at Berne in 1886, artistic works were con- joined with literary works under like protection throughout the convention and they were specified (art. IV) as covering "works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architec- ARTISTIC 249 ture, or science in general ; in fact, every production whatsoever in the . . . artistic domain which can be pubUshed by any mode of impression or reproduc- tion." In the final protocol it was specifically pro- vided: " (i) As regards article IV, it is agreed that those countries of the Union where the character of artistic works is not refused to photographs, engage to admit them to the benefits of the Convention, from the date of its coming into effect. They are, however, not bound to protect the authors of such works further than is permitted by their own legis- lation, except in the case of international engage- ments already existing, or which may hereafter be entered into by them. It is understood that an au- thorized photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights." In the amendatory act adopted at Paris in 1896, Paris the final protocol of 1886 was modified respecting declarationi architectural and photographic works as follows ^ ^ (l, a, b) : " In the countries of the Union in which pro- tection is accorded not only to architectural designs, but to the actual works of architecture, those works are admitted to the benefit of the provisions of the Convention of Berne and of the present additional act. " Photographic works, and those obtained by simi- lar processes, are admitted to the benefit of the provi- sions of these acts, in so far as the domestic legisla- tion allows this to be done, and according to the measure of protection which it gives to similar na- tional works. " It is understood that the authorized photograph 250 COPYRIGHT Berlin con- vention, 1908 Exhibition not publi- cation Pan American Union of a protected work of art enjoys legal protection in all the countries of the Union, within the meaning of the Convention of Berne and the present additional act, as long as the principal right of reproduction of this work itself lasts, and within the limits of private con- ventions between those who have legal rights." In the Berlin convention of 1908, artistic works were defined (art. 2, par. i) by specification as "draw- ings, paintings; works of architecture and sculpture; engravings and lithographs; illustrations; geographi- cal charts; plans, sketches and plastic works relating to geography, topography, architecture, or the sci- ences," — thus covering architectural works under general copyright. It was further provided by the convention of 1908 (art. 2, par. 4) that "works of art applied to industry are protected so far as the domestic legislation of each country allows." And article 3 provided: "The present Convention applies to photographic works and to works obtained by any process analogous to photography. The contracting countries are pledged to guarantee protection to such works." By the interpretative declaration adopted at Paris in 1896, it was specifically provided (sec. 2) : " By pub- lished works must be understood works actually issued to the public in one of the countries of the Union. Consequently, . . . the exhibition of a work of art, does not constitute publication in the sense of the aforementioned Acts." In the Berlin convention of 1908 it was similarly provided (art. 4, par. 4) that "the exhibition of a work of art and the construction of a work of architecture do not constitute publi- cation." In the Pan American Union, the Buenos Aires convention of 1910 covers artistic works on the same basis as literary works, without special provisions. XIV <<1 INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE AND "unfair competition" The word " piracy," since that gentle craft has disap- Piracy peared from the high seas, has come commonly into use to mean free-booting with reference to literary property. In this sense it is used as early as 1771 by Luckombe in his history of printing, in which he says : "They . . . would suffer by this act of piracy, since it was likely to prove a very bad edition." It was especially applied in America more or less jocularly in the days when there was no legal protection for works by English authors, to the reprinting chiefly of Eng- lish novels without authority from or payment to their authors, when publishers whose imprints were chiefly on such reprints were commonly known as pirates. This secondary meaning has been accepted by the dictionary makers, and the use by English law authorities, and now in the new American code, of the phrases "pirated works" and "piratical copies," gives the word specific legal status. It is the compre- hensive term now in common and legal use to mean the stealing of an author's work by reprinting it in full or in substantial part without the authority of the copyright proprietor, and is in fact an infringement at wholesale or otherwise of the author's exclusive right. This is of course prohibited by the law to the full extent of its jurisdiction and is punishable as pre- scribed in the law. "The true test of piracy," said Judge Shipman in Test of the U. S. Circuit Court in 1875, in Banks v. McDivitt, P^^acy is "whether the defendant has in fact used the plan, meaning 252 COPYRIGHT arrangements and illustrations as the model of his own book, with colorable alterations and variations, or whether his work is the result of his own labor, skill and use of common materials and common sources." Judge Story said in 1841, in Folsom v. Marsh: "If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are substantially, to an injurious ex- tent, appropriated by another, that is sufficient in point of law to constitute a piracy pro tanto. The entirety of the copyright is the property of the author and it is no defence that another person has appropri- ated a part and not the whole of any property." Infringe- Infringement is commonly taken to mean specific ment in invasion of the author's rights rather than wholesale me^e piracy; and the question of what is infringement or "literary larceny" is more often a question of the interpretation of the facts than the construction of the statute. The legal cases arising under infringement constitute a very large proportion of copyright litiga- tion, demanding as they do judicial determination as to the acts complained of in each particular case. It is therefore impossible in this volume to give citations or references for the hundreds of cases recorded in the law reports or in the various works on copyright, but it may be noted that the foot-note citations in Mac- Gillivray's "Law of copyright " cover a very large number of American as well as English cases. No treatise on copyright can apply, however, in advance, the general principles of copyright to the infinite va- riety of possible cases ; and only generalizations and a few illustrative cases can here be given. Infringement is a question of fact rather than of in- tent. It is not a valid defense that the infringer is ignorant ; nor, on the other hand, can any one be held for intention to infringe, where the act of infringe- INFRINGEMENT 253 ment has not been accomplished. The new American Questions code, nevertheless, recognizes knowledge and intent of tact and in certain cases of punishment or damages by the use of the words "willfully" and "knowingly." The let- ter of the law is in general that the infringer must be held responsible and must make good any dam- ages suffered by the copyright proprietor, but proof that he had no guilty knowledge or intent may effect mitigation of punitive damages. The trend of court decisions and of judicial opinion does not seem to be evident and consistent in this development; but it may perhaps be said that while copyright law is more closely applied from the letter of the statutes, in the legal aspect, the principles of equity have been given freer play where the statute is not specific and defi- nite. In 1899, in Green v. Irish Independent, the English Court of Appeal held that the proprietors of a newspaper who had printed an advertisement con- taining an illustration which the advertiser had li- cense to use only for specified purposes, were liable for penalties, though they did not know that the illus- tration was copyrighted; and in 1902, in American Press Assoc, v. Daily Story Pub. Co., the U. S. Cir- cuit Court of Appeals held the defendants liable, though they had innocently copied from a newspaper reprint which had inadvertently omitted the copy- right notice. But in 1898 Justice Mathew, in Bolton V. London Exhibitions, declined to hold the defend- ants punishable, because they did not know that the lithographer from whom they had ordered a poster had infringed the copyright of a photograph. " Fair use" means quotation from or other useof an "Fair use'' author's work within the evident meaning or judicial construction of the copyright statute, and is the usual answer of the defendant to a complaint that he has taken without authority some portion of the author's 254 COPYRIGHT work or utilized in some way the result of the author's labors. The borderland between infringement and "fair use" is peculiarly and necessarily one of uncer- tainty, not so much because of ambiguity in the statute as of difficulty in determining the extent of use within which it is said non curat lex. No statute can be so clear or so complete as to obviate questions of this kind. In general there must be copying of a material or substantial part. What is a material or substantial part, constituting infringement, is a diffi- cult question of fact. Principle of "Copying is not confined to literal repetition," infringement g^id Judge Clifford, in Lawrence v. Dana, in the U. S. Circuit Court in 1869, "but includes also the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colorable alterations to disguise the source from which the material was derived; nor is it necessary that the whole, or even the larger portion of the work, should be taken in order to constitute an invasion of copyright." The Chancery Division, through Lord Chief Justice Alverstone, took the extreme course in Trengrouse v. "Sol" Syndicate, in 1 901, of holding a work an infringement, though less than a page was taken from the plaintiff's football guide. Infringement Infringement may be by indirect as well as by di- by indirect j.g(,^ copying. In thq case of Cate v. Devon in 1889, in the Chancery Court, the defense that the copying was not from the original copyright work but from a news- paper reprint, was rejected. Infringement may be through quite a different medium from the original ; thus a shorthand reproduction of a lecture on "The dog as the friend of man," published in a text-book of shorthand, was held in the Chancery case of Nichols V. Pitman, in 1884, to be an infringement of the lecture as much as if in ordinary type. INFRINGEMENT 255 The doctrine of infringement cannot be invoked to Exceptions obtain monopoly of any particular subject, and the *''?™ *°" authorized biographer of President Garfield was de- "^"^2®°^*° nied relief in 1889, in Gilmore v. Anderson, when he sought to prevent the publication of a life of Garfield by another writer. Nor will mere similarity of treat- ment of the same subject constitute infringement. A copyright owner cannot prevent another person from publishing the matter contained in his book, if in- vented or collected independently, or from making "fair use" of its contents. Two map-makers, collect- ing at first hand the same data, would naturally make the same map, and each would equally be entitled to copyright. In this respect, ^copyright law differs from patent law, where a first use bars others from the same field. It has even been held that the col- lected material might be used by a second compiler as a guide in a second compilation, if subjected to origi- nal verification, as in the case of a street directory. But in the case of rival Boston directories in 1905, the U. S. Circuit Court of Appeals held, in Sampson & Murdock Co. v. Seaver Radford Co., that a verifica- tion by actual canvass from a list of discrepancies made up from the earlier work was beyond fair use. Abridgments were construed by early English de- infringement cisions not to be infringements, and this precedent byabridg- was followed, reluctantly and often with protest, in ^mpiSion later cases by English and American judges, as set forth in the chapter on subject-matter. Later copy- right provisions, — as by use of the word " retranche- ments" in the Berne-Berlin conventions, and the specific authorization in the American code "to make any other version thereof," and for copyright of an abridgment of a work in the public domain, — directly or by implication, make abridgment an in- fringement and free the courts to take this view. 256 COPYRIGHT Compilations also constitute infringement if they ex- tract substantial parts of a copyright work, beyond the limits of "fair use," or even if they adopt the plan or arrangement or bodily transfer the material of a copyright compilation of non-copyright matter. Abridged A curious complaint of infringement by abridg- compitations ment was made in Gabriel v. McCabe, in 1896, before Judge Grosscup in the U. S. Circuit Court in Illinois, where the plaintiff had licensed the use of a copyright song, "When the roll is called up yonder," in a collec- tion of religious poetry, "The finest of the wheat, no. 2," published by the defendant, who included the song also in an abridged edition of this collection and in a combined edition of this and another col- lection. Judge Grosscup held that: "Future editions of a book may contain a composition published in an earlier edition by license, even though parts of the earlier edition are omitted. ... To hold otherwise would practically forbid any new editions of books of compilations, for the consent of all the authors con- tributing could not, in many instances, be obtained." But if the collection had been so abridged as to result in the publication of the song alone as sheet music, it would have been an unfair use under the license. Separation of The general principles as to quotation beyond "fair I^^^S"'^ use" were well laid down by Lord Chancellor Eldon, in the early English case of Mawman v. Tegg, in 1826: " If the parts which have been copied cannot be sepa- rated from those which are original, without destroy- ing the use and value of the original matter, he who has made an improper use of that which did not be- long to him must suffer the consequences of so doing. If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. parts INFRINGEMENT 257 If an individual chooses in any work to mix my liter- ary matter with his own, he must be restrained from publishing the literary matter which belongs to me; and if the parts of the work cannot be separated, and if by that means the injunction, which restrained the publication of my literary matter, prevents also the publication of his own literary matter, he has only himself to blame." The difficult question of the extent to which a com- Law digests piler may utilize the materials of another has come especially to the front in the American courts with reference to law digests and reports, within recent years. In 1896, in Mead v. West Pub. Co., concerning rival annotated editions of "Stephen on pleading," then out of copyright, where the defendant's editor admitted having clipped the text from the complain- ant's edition and having obtained some ideas or sug- gestions from it. Judge Lochren, in the U. S. Circuit Court in Minnesota, held that there was no infringe- ment because non-copyright matter could not be pro- tected in a copyright work from such clipping, be- cause the defendant's notes were original even though suggested from the other, and because the few errors and citations in common were immaterial since there were many new citations and the work was on the whole the result of original research. That bodily transfer of citations is beyond "fair use" was em- phasized by Judge Ray in White v. Bender, in 191 1. As to proof from common errors, it had been held Proof from in 1895, in the case of Chicago Dollar Directory commoa Co. V. Chicago Directory Co., that the later work, ^^^^ containing sixty-seven errors found in the other, was evidently an infringement of the earlier compilation. In Bisel v. Welsh, Rs Brightly Pennsylvania reports, in 1904, the U. S. Circuit Court held that repetitions of errors in citations were evidence of infringement 258 COPYRIGHT Infringe- ment in part No infringe- ment of piracies or frauds by the author of his own reports published under an earlier contract by the plaintiffs; and in 191 1, in Shepard v. Taylor, Judge Hazel held that common errors were prima facie proof of infringement. In the important case of West Pub. Co. v. Lawyers' Pub. Co., where a collection of selected cases and a general digest were alleged to be infringements of the plaintiff's reports and monthly digests, Judge Coxe in the U. S. Circuit Court enjoined 303 proved "instances of piracy" but not the remaining portions of the digest, but in 1897 the U. S. Circuit Court of Appeals, through Judge Lacombe, held that under such circumstances the burden of proof must be on the unfair user and broadened the decision by issuing an injunction against the work as a whole, excepting those parts which were public property. In 1910, in Park & Pollard v. Kellerstrass, Judge Philips enjoined the whole work because the infringing parts were not separable. In 1903, in Thompson Co. v. American Law Book Co., where the editor of the defendant's law en- cyclopaedia had made a list of cases cited in com- plainant's work, which included material "pirated" by the complainant from copyright works, the Circuit Court of Appeals, reversing the lower court, held through Judge Coxe that there was no infringement, because the only use made of the list was to guide the defendant to the reports and because the complainant had no standing in equity. " If the defendant was guilty of piracy, so was the complainant; and equity will not protect a pirate from infringements of his piratical work." To like effect in Slinsgby v. Brad- ford Co., in 1905, Justice Warrington, in the Chancery Division, held that the plaintiff could not recover against an evident copying because his own catalogue was fraudulent in advertising as patented articles not so protected, and a fraud will not be protected. In INFRINGEMENT 259 the later case of West Pub. Co. v. Thompson Co., where the pubUshers of the original reports and di- gests sought to restrain the Thompson encyclopaedias, the Circuit Court of Appeals held that while a com- piler may use a copyright digest by making lists from which to run down cases, which is "fair use," exten- sive copying or paraphrasing of the language of the digest, whether to save literary work or mechanical labor, constitutes an infringement. The case was sent back to the lower court for rehearing and assessment of damages and was settled in 19 11 by an agreement involving transfer of the encyclopaedia to the plain- tiff. Reference to a copyright work giving pagination is not an infringement, as was decided in 1909, in Banks Law Pub. Co. v. Lawyers Co-operative Pub. Co., in the U. S. Circuit Court of Appeals. Whether simple quotation constitutes an infringe- Quotation ment or is "fair use," depends upon extent and in some respects upon purpose. In 1892 Justice North, in the English Court of Chancery, in Walter v. Stein- kopff, held that the use by the St. James Gazette of two fifths of an article by Kipling, copyrighted by the Times, was beyond "fair use" of quotations, notwith- standing the newspaper custom of copying from one another. On the other hand, quotations in a review of a book made to reasonable extent for the purposes of criticism, have usually been considered "fair use," provided they do not go to the extent of a description or abridgment which would be measurably a substi- tute for the book. The multiplication of copies by handwriting or Private use other process for private use, as among the members of an orchestra or in a business office, has been held an infringement in English decisions, though prohi- bition of the making of a single copy for personal use would be an extreme application of this doctrine, 26o COPYRIGHT and such use is specifically permitted in the new English code. The doctrine Beyond the purview of copyright law, there is a of "unfair ^^ means of legal remedy for the copyright proprietor compe on ^j^j^,]^ ^^j^ ^^ enforced by state as well as by federal courts, resting either upon statutes outside the copy- right law, or on the general principles of equity. This is the application of the doctrine of "unfair compe- tition" especially in cases involving "fraud" or fraudulent representation, direct or implied, leading the purchaser to buy something other than what he supposes he is buying. Thus if a publisher prints and binds a book with a title and in a style that leads a purchaser to suppose that it is another book which he is buying, the publisher of the other book has the right to obtain equitable relief by an injunction from the transgressor on the ground of unfair competition without any reference to copyright law, although this doctrine is more applied in the case of patents, trade- marks and copyrights than perhaps any other field. The doctrine There is also evident a growing tendency on the of deceptive part of the courts to protect the public from pos- sible deception especially if done with fraudulent in- tent, where some distinctive name or symbol or form associated with some line of product is used for an- other line of product of different origin and character, though there may be here no direct competition ; but this comparatively new doctrine is more likely to be used in regard to trade-mark articles than in respect to literary and like property. It might, however, apply in a case where a well-known publishing house had published, for instance, a popular series of school- books as Smith's Arithmetical Readers and another firm containing the same name had started to pub- lish a Smith's Algebraic Readers — but the applica- tion would be extremely doubtful. INFRINGEMENT 261 In the Chatterbox cases, 1884-1887, previously re- The "Chat- f erred to, the final decision of Judge Shipman empha- terbox" sized the view that the use of the title " Chatterbox" '^^^^^ on a similar publication was misleading to the public, thus bringing both trade-mark law and common law protection to the rescue against unfair competition. In the series of Encyclopaedia Britannica cases, Encyclopse- 1890-1904, the English publishers Black or their djaBritan- American representatives Scribner sought to protect '"*'" "^^^^ in this country the English edition, or an American authorized edition, under the copyright law previous to 1 89 1, copyrighted articles by Americans being in- cluded, and under common law because of the alleged fraudulent misuse of the name to mislead the public. In 1893, in Black v. Allen, Judge Townsend held that the use of copyrighted material in a non-copyright work did not vitiate the copyright, that the American author was entitled to secure and protect copyright even though the right to use was assigned to an Eng- lish house which could not directly secure copyright, and that the fact of discrepancy in the title of the copyrighted articles as registered for copyright on separate publication and deposit and in the cyclo- psedia, did not endanger the copyright. In 1904, in Encyclopaedia Britannica Co. v. Tribune Association, Judge Lacombe in the U. S. Circuit Court enjoined condensations of the copyrighted American articles. But in Black v. Ehrich and other cases, the complain- ants were not successful in obtaining an injunction against the use of the title Encyclopaedia Britannica on reprints of non-copyright material which did not mislead the public. In the Webster Dictionary cases in 1 890-1 909, a Webster long litigation between the Merriams, as authorized Dictionary publishers of Webster, and Ogilvie and other defend- '^^^^^ ants, the courts held that the use of the name Webster 262 COPYRIGHT "Old sleuth" cases Other title decisions or the title Webster's Dictionary could not be re- strained when used in connection with a reprint of the original Webster Dictionary, then out of copyright, or otherwise in a manner not likely to mislead the public; but injunctions were granted and sustained against the use of these names on dictionaries issued in form so like the Merriam editions as to deceive the public, or in connection with misleading advertise- ments or circulars. In 1 888-1 890 George Munro, publisher of the "Old sleuth" detective series, sought in actions against several defendants to protect the use of the name "Sleuth " and was upheld in the N. Y. Supreme Court in separate decisions by Judges Andrews, O'Brien, and Patterson, while in one of the cases Judge Ingra- ham held that "sleuth" was a dictionary word and could not be protected; in 1889 the N. Y. Court of Appeals through Chief Judge Parker decided that the name "Sleuth" was protectable, and in 1890 Judge Macomber of the N. Y. Supreme Court held that "Sleuth" was properly a subject of trade-mark. But in 1890 also, Judge Shipman in the U. S. District Court dismissed the complaint in another Munro case, as to an illustration picturing "Old Sleuth," on the ground that though of the same subject it was not of the same character. These cases illustrate the diffi- culty of decisions in this borderland of equity. In 1894 Judge Green, in the U. S. Circuit Court in New Jersey, in Social Register Association v. Howard, protected on grounds of equity the title "Social reg- ister" as descriptive of a social directory covering Orange, N. J., and enjoined the use of "Howard's Social register" as unfair competition. In 1887 the Harper house, as publishers of the Franklin Square Library, obtained from the U. S. Circuit Court, through Judge Waite, an injunction against the INFRINGEMENT 263 Franklin Square Library Company for violation of their trade-mark rights in the name. Where the American Book Co. brought suit Rebound against Doan & Hanson, who had restored and re- copies bound used copies of schoolbooks, the U. S. Circuit Court of Appeals held in 190 1 that there was no violation of law, but required notice that the books were second-hand copies by conspicuous stamp on the cover. In 1891 the Pennsylvania Supreme Court, in Dodd V. Smith, declined to grant Dodd, Mead & Co. an injunction against re-binders who had purchased from them sheets of a fifty-cent paper-covered edi- tion of a novel by E. P. Roe and bound these in cloth to sell at sixty cents in competition with the plaintiff's $1.50 cloth edition. In 1899 G. P. Putnam's Sons purchased from Kip- The Kipling ling's authorized publishers sheets of twelve volumes, ^^^^ added three volumes of non-copyright or otherwise authorized material and published the fifteen volumes, "Brushwood edition," of Kipling's works, with the design of an elephant's head on the binding. Kipling sought an injunction for infringement of copyright, use of trade-mark and unfair competition with the "Outward bound edition" of his works, which also bore an elephant's head. In 1903 the U. S. Circuit Court of Appeals, through Judge Coxe, affirmed a decision holding as "a well-recognized principle of law" that "the defendants, having purchased un- bound copyrighted volumes, were at liberty, so far as the copyright statute is concerned, to bind and resell them"; that the elephant's head, not being a regis- tered trade-mark, could not be protected as a trade- mark; and that there was no similarity of editions constituting unfair competition. But in 1907, in Dutton V. Cupples & Leon, the plaintiffs obtained damages for a series of books closely imitating the 264 COPYRIGHT Burlesqued title The Dnim- mond case The new British code get-up of their "Gem" or "Dainty " series. Passing off, however, cannot be made ground of action when material protectable by copyright has not been copy- righted, as was held in 1908, in Bamforth v. Douglas Post Card Co., by Judge McPherson in the U. S. Circuit Court. The suit to enjoin the use of a reversed or bur- lesque title, when the Boston Herald printed, under the title of " Letters of a son to his self-made father," a skit on Lorimer's "Letters of a self-made merchant to his son," was denied by Judge Morton in the Massachusetts Supreme Court in 1903 as involving no deception. In 1894 Henry Drummond, a British subject, ob- tained from Judge Dallas, in the U. S. Circuit Court, an injunction restraining Henry Altemus from pub- lishing what purported to be exact reports of twelve lectures, of which eight only had been imperfectly re- ported in the British Weekly, on the ground that the author had a common law right to restrain the publi- cation "of any literary matter as the plaintiff's, which was not actually his creation, and to prevent fraud." The new British measure comprehensively defines infringement as the doing without consent of the owner of the copyright of "anything the sole right to do which is by this act conferred on the owner of the copyright," but specifically excepts (i) fair dealing for private study, research, criticism, review or news- paper summary; (2) use by an artist of sketches, etc., made for a work of which he has sold the copyright, provided he does not repeat or imitate that work; (3) graphic reproduction of objects, or photographing of paintings, etc., in a public place; (4) limited extracts for use in schoolbooks; (5) report of lectures unless prohibited by placard; (6) reading or recitation of reasonable extracts. XV REMEDIES AND PROCEDURE It was for the protection of copyrights that the stat- Protection ute of Anne was passed and that statutory law thus V^^ proce- began to replace English common law — a gain to authors sadly offset by its losses. But it was un- doubtedly true that without statutory provision the proprietor of literary and similar property could not obtain the protection necessary for the enforcement of his rights. The new American code is comprehen- sive, detailed and specific in its legal provisions for protection and procedure, and in respect to punish- ment far beyond any copyright legislation on the statute books of any other nation. The first protection given by the statute is the in- Injunction junction usual in equity proceedings, following the precedent of early legislation. Under previous American law, damages were Damages levied primarily on infringing copies found in posses- sion of the infringer or his agents, with the unfortu- nate result that when an infringer was successful in selling his edition, few, if any, copies were found on which to levy damages. The new code thoroughly corrects this defect by providing for specified dam- ages on infringing copies "made or sold by or found in the possession of the infringer or his agents or employees." The plaintiff is entitled to damages and all profits and is required only to prove sales, while the defendant is required to prove the elements of cost. The damages — assessed as such and not as penalties so as to free copyright litigation from the restrictions of penal proceedings — are stated as one 266 COPYRIGHT One suit sufficing Deposit of infringing articles dollar for each infringing copy, except copies of a painting, statue or sculpture on which they are ten dollars per copy ; fifty dollars for each infringing de- livery of an oral work; one hundred dollars for the first and fifty dollars for each subsequent infringing performance of a dramatic, dramatico-musical, choral or orchestral work ; and ten dollars for each infringing performance of any other musical work. These dam- ages shall not be less than $250 or more than $5000 in any one case, with the exception that for a news- paper reproduction of a photograph the minimum shall be fifty dollars and the maximum two hundred dollars, a concession insisted upon by newspaper pro- prietors. Injunction, damages and profits, and delivery of infringing copies or means of production, are covered in the single suit to protect the copyright. During the pendency of an action the defendant may be required to deposit all articles alleged to in- fringe copyright, making oath that he has deposited all such, under regulations for his protection pre- scribed, as the law directs, by the Supreme Court, which regulations are given in full in the appendix of this volume; and when such articles are adjudged to be infringements, he must deliver up for destruction not only such infringing copies or devices, but also all plates, molds, matrices or other means for making such infringing copies as the court may order, making oath that he has delivered up all such. The text covering these provisions, with the excep- tion of subsection (e) , referring to mechanical musical reproductions, given in the chapter on that subject, is as follows: " (Sec. 25.) That if any person shall infringe the copyright in any work protected under the copyright laws of the United States such person shall be liable: REMEDIES AND PROCEDURE 267 " (a) To an injunction restraining such infringe- Remedies ment ; specified " (b) To pay to the copyright proprietor such dam- ages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such in- fringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a pen- alty: " First. In the case of a painting, statue, or sculp- ture, ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees; "Second. In the case of any work enumerated in section five of this Act, except a painting, statue, or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees ; ' ' Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery ; "Fourth. In the case of dramatic or dramatico- musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of 268 COPYRIGHT Supreme Court rules Court juris- diction Other musical compositions, ten dollars for every infringing performance; Impounding ' ' (c) To deliver up on oath , to be impounded during the pendency of the action, upon such terms and con- ditions as the court may prescribe, all articles alleged to infringe a copyright ; "(d) To deliver up on oath for destruction all the in- fringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies as the court may order; " Rules and regulations for practice and procedure under this section shall be prescribed by the Supreme Court of the United States," for which see appendix. The Circuit Court, or District or other courts hav- ing circuit jurisdiction, of the United States, have original jurisdiction "of all suits at law or in equity arising under the patent or copyright laws of the United States" with appeal or writ of error to the Supreme Court of the United States. Copyright cases are brought in the first instance before a single judge sitting in Circuit Court or District Court, and thence are appealed to the Circuit Court of Appeals consisting of three or more circuit judges, and thence again to the United States Supreme Court, the final authority. These federal courts have sole jurisdiction under the copyright law as such ; but copyright cases are often adjudicated in State courts on questions arising under the law of contracts or other statute or common law, regard being always given to the deci- sions of the federal courts as to copyright questions proper which may be involved. In other words, the State courts do not pass upon copyright law, but may apply, within the respective states, the copyright decisions of federal courts. Thus in Hoyt v. Bates, in 1897, Judge Putnam in the U. S. Circuit Court in Massachusetts remanded the case back to the State REMEDIES AND PROCEDURE 269 courts because the question was not under the copy- right law as such, but regarding the ownership of copyright property. In this case the author of a play "A black sheep," containing a song "Sweet Daisy Stokes," licensed the defendant to print the song. The defendant copyrighted the song and the plaintiff sued to compel him to assign his copyright. The case illustrates the respective jurisdictions of federal and State courts in copyright matters. The United States courts have authority to enter Court juris- the decrees necessary to enforce the remedies pro- dictioii vided by the law. Important provisions of the new code provide that civil action in copyright cases may be brought "in the district of which the defendant or his agent is an inhabitant or in which he may be found" — thus preventing avoidance by the de- fendant possible under earlier law; and also that any injunction granted in any one district may be opera- tive throughout the United States — a provision adopted into the law from recent legislation intended to prevent the evasion of injunctions, particularly by "fly by night" dramatic companies passing from one state or court jurisdiction into another, but usefully applicable also throughout the whole range of copy- right infringements. Criminal proceedings under the Limitation copyright act may not be brought after three years from the commission of the offense. Under the former laws the District courts also had certain — or uncertain — j urisdiction . The distinction between the District courts and the Circuit courts of the United States, both of which are courts of first instance, has been so complicated and uncertain as to be practicallly impossible of statement — a situation which has led to a measure for the abolition of the distinction and the provision of a single court in each federal district having original jurisdiction in 270 COPYRIGHT Text of procedure provisions Proceedings united in one action Jurisdiction in copyright cases Injtuction provisions the first instance, from which appeal will go to the Circuit Court of Appeals and thence to the U. S. Su- preme Court, or in certain cases direct to the Supreme Court. The text of these provisions is as follows : "(Sec. 26,) That any court given jurisdiction un- der section thirty-four of this Act may proceed in any action, suit, or proceeding instituted for violation of any provision hereof to enter a judgment or decree enforcing the remedies herein provided. " (Sec. 27.) That the proceedings for an injunction, damages, and profits, and those for the seizure of in- fringing copies, plates, molds, matrices, and so forth, aforementioned, may be united in one action." " (Sec. 34.) That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands. " (Sec. 35.) That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found. " (Sec. 36.) That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of any- thing forbidden by this Act may be served on the parties against whom such injunction may be granted REMEDIES AND PROCEDURE 271 anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the de- fendants. " (Sec. 37.) That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office. " (Sec. 38.) That the orders, judgments, or decrees Appeal of any court mentioned in section thirty-four of this Act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said courts, respectively. "(Sec. 39.) That no criminal proceeding shall be No criminal maintained under the provisions of this Act unless the proceedings same is commenced within three years after the cause yg„g of action arose." The copyright statutes are construed strictly, by Strict com- the letter of the law, In respect to procedure as well as Plif "^^e re- to other features. This is especially the case in respect ''"^' * to forfeiture and penalties, as where, in Falk v. Heflfron, in 1893, 2400 copies of a copyright portrait of Lillian Russell had been lithographed, twenty-one on a sheet, Judge Wheeler in the U. S. Circuit Court in New York held with the jury that only one dollar per sheet could be recovered as penalty, because the law specified "sheets." In McDonald v. Hearst, in 1899, in the U. S. Circuit Court in California, Judge De- Haven held that the proprietor of the San Francisco Examiner could not be held liable for copyright pen- alties because an employer could not be held to penal 272 COPYRIGHT responsibility for the act of his agent. In a suit to obtain damages based on forfeiture, in Wheeler v. Cobbey, in 1895, Judge Shiras in the U. S. Circuit Court in Nebraska sustained a demurrer on the ground that the damages asked for depended on for- feiture and could not be obtained unless the actual forfeiture was had within the statutory limit of two years. In Morrison z;. Pettibone, in 1897, in the U. S. Circuit Court in Illinois, Judge Seaman held that certain sheets, seized during the process of lithograph- ing, when only one color had been printed, were not exact copies and therefore could not be forfeited. In Bennett v. Boston Traveler Co., in 1900, the Circuit Court of Appeals, through Judge Colt, refused relief because the plaintiff had alleged infringement of a cartoon published in the New York Herald, which was not specifically copyrighted, instead of alleging infringement of the copyrighted newspaper of which it was a part. An extreme case was that of Child v. N. Y. Times Co., in 1901, where the plaintiff had purchased infringing copies from the] defendant, in which case Judge Hazel in the U. S. Circuit Court in New York held that as these were not literally "found in possession" of defendant, a penalty could not be collected. Several of these cases illustrate escapes from justice which will not be possible under the code of 1909, which uses broader phraseology. In Walker v. Globe Newspaper Co., in 1908, where no copies of a pirated map were found in possession of the defendants, the U. S. Supreme Court held that out- side of statutory remedies no suit for damages could be maintained. Damage not On the Other hand, in the case of Brady v. Daly, penalty which came before the U. S. Supreme Court in 1899, the defendants, on a question of jurisdiction, raised the issue that the old law provided for a penalty and REMEDIES AND PROCEDURE 273 not for damages, in denying which Justice Peckham held that: "The statute in using the word 'damages' did not mean a forfeiture or penalty, as it is difficult to prove the exact amount which the proprietor of a play may suffer by reason of an infringement. It is probable that Congress intended to provide a remedy so that the proprietor could recover a certain amount of damages without proof of what his actual loss had been. In the face of the difficulty of determining the amount of damages, a minimum sum is provided in any case, with the possibility of recovering a larger amount on proof of greater damage. The idea of punishment is not so much suggested as the desire to provide for compensation to the proprietor." This rule was applied by Judge Lacombe in Patterson v. Ogilvie, in 1902. In the case of Falk v. Curtis Pub. Co., which came other pro- before the U. S. Circuit Court in Pennsylvania twice cedure de- in 1900, some important decisions or indications as "^'°°* to copyright procedure were given. The defense that under the copyright act the words "any person" did not include a corporation was overruled by Judge Dallas on the ground that the general statute specifi- cally construed the word " person " to extend to part- nerships and corporations. In this case an action to recover penalties and an action to replevin copies in possession were started independently and simul- taneously, and the Circuit Court of Appeals through Judge Buffington affirmed the decision that as the penalties under the old act were restricted to copies "found in possession," the suit for penalties was pre- mature. In the later case of Rinehart v. Smith, also in the Pennsylvania circuit, it was pointed out that an action for replevin was not the proper form of suit because in such actions bonds might be given and the forfeiture of copies thus be barred ; and in Hegeman v. 274 COPYRIGHT Springer, the Circuit Court in New York held, in 1901, that a replevin suit, involving prior demand, was not necessary and that the copyright statute itself gave authority for an action for seizure without previous demand, as would be necessary in replevin proceed- ings. It was held, however, in the Illinois circuit in an earlier case, that a suit of replevin will lie to enforce forfeiture under the copyright act. Several of these perplexities, however, are removed by the code of 1909, which expressly (sec. 27) authorizes the bringing together of all the remedies in one action. Preventive Tfiat there can be no infringement of copyright by actjon acts committed before the copyright was obtained, was decided in 1900 in the U. S. Circuit Court in the case of Maloney v. Foote, where the two parties were jointly engaged in preparing directories, and the plain- tiff obtained the copyright and brought suit for in- fringement for the prior use of material, the question being of contract and not of copyright. On the other hand, as far as practicable, "it is the policy of the law to arrest the pirate before he actually makes off with the plunder," said Judge Coxe in theU. S. Circuit Court of Appeals, in Gannet v. Rupert, in 1904. Party in suit In 1903, in Champney v. Haag, it was held in the U. S. Circuit Court in Pennsylvania, that though a copy of a photograph of a copyright painting was an infringement, it was not the owner of the original copyright but the owner of the photograph who must sue — but this is contrary to the English ruling case of Lucas V. Williams, and is probably not good law. Suit for A curious case arose in England in 1892 as to the injury to rights of an author after publication and transfer of repu a on copyright, in Lee v. Gibbings, where the plaintiff had prepared for the defendant, a publisher, at an agreed price, an edition with introduction of Lord Herbert's autobiography, which the defendant re-issued in a REMEDIES AND PROCEDURE 275 condensed edition without the introduction and other matter by the author, though retaining his name. The author sued to restrain the condensation as an injury to his reputation, but Justice Kekewich in the Chancery Division held that this should be a suit for libel and not under copyright, and declined to enjoin the defendant before the question whether this was actually a libel was settled. In a case of evident bad faith in wholesale copying, Damages in the U. S. Circuit Court in Hartford Printing Co. v. '"'^'^ "^^s* Hartford Directory Co. awarded as damages the gross receipts less estimated cost. The provisions for collecting damages and profits Penal pro- are supplemented in case of infringement, willfully visions and for profit, by penal provisions which make the offense a misdemeanor punishable by imprisonment not exceeding one year or fine not less than $100 or more than $1000, or both, in the discretion of the court, according to the following provision (sec. 28) : "That any person who willfully and for profit shall Penalty for infringe any copyright secured by this Act, or who willful in- shall knowingly and willfully aid or abet such in- semen fringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court." This provision (sec. 28) includes however a pro- viso exempting from prevention or punishment the performance of certain musical works for charitable or educational purposes and not for profit, which pro- viso is given in full in the chapter on dramatic and musical copyright. Provision is also made in the new statute for the punishment by fine, but not by imprisonment, of any 276 COPYRIGHT Penalty for false notice of copyright Allowance of costs person who with fraudulent intent affixes a copy- right notice or its equivalent on an uncopyrighted work, or removes or alters the .copyright notice in a copyrighted work, the fine being not less than $100 nor more than $1000; and of any person who shall know- ingly issue, sell or import any article bearing notice of United States copyright which has not been copy- righted in this country, the fine in this case being $100, according to these provisions : " (Sec. 29.) That any person who, with fraudulent intent, shall insert or impress any notice of copy- right required by this Act, or words of the same pur- port, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any ar- ticle bearing such notice or words of the same pur- port, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars." Further provisions as to importation are given in the chapter on that subject. In addition to injunction, damages and profits, delivery of copies, etc., the courts may allow costs inclusive of attorney's fees as provided : "(Sec. 40.) That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs." It seems impracticable and undesirable to attempt in this chapter a statement of the procedure under REMEDIES AND PROCEDURE 277 former copyright laws in this country, or under the legal methods in vogue in other countries, for which the legal authorities on local procedure and practice should be consulted. The new British measure provides the usual civil The new remedies of injunction, damages, account and costs Bntishcode in the discretion of the court. The author, or if no author the publisher whose name is indicated on the work, is prima facie recognized as owner unless the contrary is proved. Infringing copies or plates become the property of the copyright owner. If the infringer proves ignorance, only an injunction will hold. In architectural works, after construction has been commenced, damages and not an injunction are provided for. Actions must be commenced within three years. Summary conviction is provided for in the case of any person knowingly and for profit or trade making, offering, distributing, exhibiting or im- porting infringing copies or making or having in pos- session infringing plates with penalty of a fine not exceeding fifty pounds, or in case of a second offense, imprisonment not exceeding two months, as also destruction or delivery up to owner of the copyright. The summary provisions of the musical copyright acts of 1902 and 1906 remain unrepealed. Under previous law there had been two notable cases of criminal punishment for conspiracy. In 1906, Re Willets against a combination among cheap music publishers, where the Common Serjeant sen- tenced the vendors to nine months' imprisonment, and in 1910, Re Bokenham, where pirates who had con- spired to print surreptitiously obtained copies of Oscar Wilde's poem "De Profundis," were also sen- tenced to six months and lesser periods. XVI IMPORTATION OF COPYRIGHTED WORKS Copyright and importa- tion Fundamen- tal right of exclusion , The right to import a copyrighted book and, con- versely, the right to exclude importation are rights incident to the general "exclusive right" of an author or copyright proprietor. This is recognized, in terms or inferentially, in the copyright law of most coun- tries ; and the American copyright code is exceptional and almost without precedent, save that of the pre- ceding American law of 1891, in specifically permit- ting the importation of copyrighted books in stated cases, without the consent or authority of the copy- right proprietor. As Senator O. H. Piatt in the copyright debate of 1 89 1 said: "The fundamental idea of a copyright is the exclusive right to vend, and the prohibition against importation from a foreign nation is necessary to the enjoyment of that right. The privilege of con- trolling the market is indeed essential." The copy- right laws of foreign countries, and our own copyright legislation previous to 1 891, carefully safeguard this right. When an author cannot assure to an American publisher the American market he cannot get from that publisher the price he would otherwise secure. In the " international copyright amendment " of 1891, Congress accompanied the manufacturing clause, which prohibited the importation of foreign copies even with the consent of the author, by a proviso permitting certain importations even without the consent of the author — on the homoeopathic princi- ple of off-setting one restriction upon authors' rights by another restriction upon authors' rights. IMPORTATION 279 In general the law prohibits absolutely the im- General portation of "piratical copies" or of works bearing prohibitions a false notice of United States copyright; it also pro- hibits, even though with consent of the author and the copyright proprietor, the importation in the case of works subject to the manufacturing clause, of any copies not manufactured in this country — but this prohibition does not apply to books in raised charac- ters for use of the blind ; to foreign-made periodicals containing authorized copyright matter; to author- ized copies of a work in a foreign language of which only an English translation has been copyrighted here; or to authorized copies published abroad when imported under specified exceptional circumstances. These exceptions permit the importation of author- Exceptions ized copies for individual use and not for sale, not pe™"t*e* deposits 306 COPYRIGHT laws of the United States or of this Act, the Librarian of Congress shall determine what books and other articles shall be transferred to the permanent collec- tions of the Library of Congress, including the law library, and what other books or articles shall be placed in the reserve collections of the Library of Congress for sale or exchange, or be transferred to other governmental libraries in the District of Colum- bia for use therein. Disposal of " (Sec. 60.) That of any articles undisposed of as deposits above provided, together with all titles and corre- spondence relating thereto, the Librarian of Congress and the register of copyrights jointly shall, at suitable intervals, determine what of these received during any period of years it is desirable or useful to preserve in the permanent files of the copyright office, and, after due notice as hereinafter provided, may within their discretion cause the remaining articles and other things to be destroyed : Provided, That there shall be printed in the Catalogue of Copyright Entries from February to November, inclusive, a statement of the years of receipt of such articles and a notice to permit any author, copyright proprietor, or other lawful claimant to claim and remove before the expiration of the month of December of that year anything found which relates to any of his productions deposited or registered for copyright within the period of years stated, not reserved or disposed of as provided for in this Act: And provided further, That no manuscript of an unpublished work shall be destroyed during its term of copyright without specific notice to the copy- right proprietor of record, permitting him to claim and remove it. "(Sec. 61.) That the register of copyrights shall receive, and the persons to whom the services desig- nated are rendered shall pay, the following fees: For OFFICE METHODS 307 the registration of any work subject to copyright, Fees deposited under the provisions of this Act, one dollar, which sum is to include a certificate of registration under seal: Provided, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of regis- tration made, fifty cents. For recording and certify- ing any instrument of writing for the assignment of copyright, or any such license specified in section one, subsection (e), or for any copy of such assignment or license, duly certified, if not over three hundred words in length, one dollar; if more than three hundred and less than one thousand words in length, two dollars; if more than one thousand words in length, one dollar additional for each one thousand words or fraction thereof over three hundred words. For recording the notice of user or acquiescence specified in section one, subsection (e), twenty-five cents for each notice if not over fifty words, and an additional twenty-five cents for each additional one hundred words. For compar- ing any copy of an assignment with the record of such document in the copyright office and certifying the same under seal, one dollar. For recording the exten- sion or renewal of copyright provided for in sections twenty-three and twenty-four of this Act, fifty cents. For recording the transfer of the proprietorship of copyrighted articles, ten cents for each title of a book or other article, in addition to the fee prescribed for recording the instrument of assignment. For any requested search of copyright office records, indexes, or deposits, fifty cents for each full hour of time con- sumed in making such search: Provided, That only Only one one registration at one fee shall be required in the registration case of several volumes of the same book deposited "'""^ at the same time." The organization of the Copyright Office under the 308 COPYRIGHT Present or- ganization Efficiency of methods present administration of the Librarian of Congress, Herbert Putnam, appointed by President McKinley in 1898, and the Register of Copyrights, Thorvald Solberg, the first and only occupant of that post, ap- pointed by the Librarian of Congress in 1897, presents a standard of efficiency, celerity and economy which is a model for governmental departments, or indeed for any administrative business. The enormous amount of detail is systematized and controlled by a remark- able method of record, and blank forms provide in the utmost variety of detail for every feature of the work of correspondence, especially in calling the attention of applicants to defects in their applications, which are many and various. As the result of this organization, the complex law of March 4, 1909, was put in operation July i, 1909, without a hitch; and inquiries made to the Copyright Office are answered, usually on the same day, with remarkable dispatch and accuracy. For instance, the many letters directed mistakenly to the Register of Copyrights, instead of to the Commissioner of Pat- ents, the frequent applications for the protection of prints designed for articles of manufacture, and the multitudinous applications on articles not subject to copyright, or for projected works or for book manu- scripts previous to publication, are each covered by a form letter with an index card of a distinctive color for each, so that a full record is kept in the Copyright Office of such errors without unduly complicating the copyright records proper. The Copyright Office now handles approximately half a million items of entries, deposits and correspondence during the year, and covers into the Treasury more than $100,000, returning to the government a substantial sum above the direct cost of administration. The Copyright Office prints annually a summary of OFFICE METHODS 309 its work, from which it appears that in the year ending Registratioii June 30, 1910, the first year of operation of the new ^Qoo-io^o copyright code, it had issued copyright certificates to the number of 96,634, representing an equal num- ber of registrations at $l 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 sum- mary for the calendar year is printed in separate form at the beginning of the new year. In addition to the regular certificates in card form. Certificates the Copyright Office also issues certificates in quarto *°' *'°"''* "^^ shape when desired, which are especially utilized in court proceedings as parts of the record. The Copyright Office makes searches for informa- Searches tion, under the provisions of the new law, at the rate of fifty cents for each full hour of the person em- ployed in such search. The new Rules provide for such searches as follows: " (49.) Upon application to the Register of Copy- rights, 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 title, the name of the claimant of copyright and probable date of entry; in the case of an assignment, the name of the assignor or assignee or both, and the name of the copyright claimant and the title of the music referred to in case of notice of user." Question having been raised by the Commissioner Patent OflSce of Patents whether the act of 1909 did not charge the l^P^^ **" 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 3IO COPYRIGHT 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. Foreign In Great Britain there is no official copyright office, practice j^^^ registration has been made at Stationers' Hall in charge of the Stationers' Company, a quasi public institution, while deposit is made primarily in the national library at the British Museum. The records at Stationers' Hall and the printed or other cata- logues of the British Museum are public. But there is no printed copyright list except of prohibitions of importations issued by the Commissioners of Cus- toms. Under the new British measure there is no reg- istration at Stationers' Hall or elsewhere. In France there is no copyright office proper and the deposit copies required from the printer are de- posited with the Ministry of the Interior at Paris or at the Prefecture or town clerk's office in the pro- vinces. In other European countries, the registration, when required, is made for the most part in one of the government departments, as Ministry of Interior, De- partment 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 With the growth of civilization, the practice of pro- international tecting in all countries the property of the citizen of protection of any other country has also grown, until it is now a P^P*"^ generally recognized principle. This principle, applied to literary property, has resulted in international copyright among most civilized nations. The first provision for internationatl copyright, Early copy- aside from the ancient practice in France of giving right pro- protection to authors of other countries who pub- ^'^ °° lished 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 ex- tent of reciprocal privileges granted by that country. England followed, in 1838, with an "act for securing Early Eng- to authors, in certain cases, the benefit of interna- Mshprotec- tional 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 copy- right in the United Kingdom, on certain conditions, providing that country conferred similar privileges on English authors. The act of 1844 extended this priv- ilege to prints, sculpture and other works of art, and provided for international playright. It expressly denied the privilege, however, to translations of for- eign works, and it was not until 1852 that provision was fully made for translations of books and of dra- matic compositions, the latter with the proviso that "fair imitations or adaptations" of foreign plays or music might be made. In this early period Great 312 COPYRIGHT Britain negotiated treaties with the German states (1846-55), France (1851), Belgium (1854), Spain (1857), and Sardinia (i860), 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 copy- right. The international copyright act of 1875 re- pealed 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 shilling 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 lim- ited protection of translations, which was for five years only. Adhesion Great Britain became a signatory power of the to Berne Berne convention of 1886, and the international copy- right act of 1886, amending and in part repealing the previous international copyright acts, was passed 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 origi- nal 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, convention INTERNATIONAL CONVENTIONS 313 but it was nevertheless held in Fishburn v. Hollings- head, 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 entitled only to the protection afforded to natives. In Hanfstaengl v. HoUoway, 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, con- firmed the provisions that no formalities beyond those in the country of origin were requisite. With the development of the International Copy- Effect of right Union, through the Berne convention of 1886, ^eme 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 314 COPYRIGHT copyright arrangements are tabulated in condensed form in the conspectus of copyright by countries given in the preliminary pages. International At the time of the Universal Exposition in Paris in literary jg^g^ ^j^g Pfgnch Socit6 des Gens de Lettres issued congresses jnyitations for an International Literary Congress, which was held in Paris, under the presidency of Victor Hugo, commencing June 4, 1878. From this came the Association LittSraire et Artistique Inter- nationale, which held subsequent congresses at Lon- don 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 advo- cated. Fundamental The Congress at Antwerp, in 1885, ratified the proposition following proposition: "The author's right in his work constitutes an inherent right of property. The law does not create, but merely regulates it." Preliminary Partly, at the initiative of this association and at official con- ^q invitation of the Swiss government, a prelimin- erence, 1 3 ^^ conference of official representatives of the sev- eral nations was held at Berne in September, 1883, at which the following draft, submitted by the Inter- national Literary and Artistic Association, was sub- stantially adopted as the basis for a general conven- tion on the part of civilized nations : " I. The authors of literary or artistic works pub- lished, represented, or executed in one of the contract- ing States, shall enjoy, upon the sole condition of accomplishing 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. "2. The terra literary or artistic works comprises INTERNATIONAL CONVENTIONS 315 books, pamphlets, and all other writings; dramatic Propositions and dramatico-musical works; musical compositions, '^^ ^^^3 with or without words, and arrangements of music; drawings, paintings, sculptures, engravings, litho- graphs, maps, plans, scientific sketches, and generally all other literary, artistic, and scientific works what- soever, which may be published by any system of impression or reproduction whatsoever. "3. The rights of authors extend to manuscript or unpublished works. "4. The legal representatives and assignees of au- thors 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 com- prises 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 trans- lated 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 3i6 COPYRIGHT themselves for the protection of literary or artistic works, provided that such agreements are not con- trary to any of the provisions of the present convention. " 10. A Central International Office shall be estab- lished, at which shall be deposited by the Govern- ments 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 documents and information necessary to be made known to the parties interested." First official This draft, as adopted, was submitted by the Swiss conference, government to the first formal international confer- ^ "* ence for the protection of the rights of authors, held at Berne from September 8 to 19, 1884. At this confer- ence representatives from thirteen countries were present — Austria, Belgium, Costa Rica, France, Ger- many, Great Britain, Haiti, Holland, Italy, Salva- dor, Sweden and Norway, and Switzerland ; and the result of their deliberations was a new "draft con- vention 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 : " I. Authors placing themselves within the juris- diction of the contracting countries will be afforded protection for their works, whether in print or manu- 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 pre- scribed by the legislation of the author's native coun- try, 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. INTERNATIONAL CONVENTIONS 317 " 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. ' ' 4. Authors within the j urisdictionof the Union will enjoy in all the countries the exclusive rights of trans- lation of their works during a period of ten years after publication in any one country of the Union of an authorized translation. "5. It is proposed that it shall be made legal to pub- lish extracts from works which have appeared in any country of the Union, provided that such publica- tions are adapted for teaching or have a scientific character. The reciprocal publication of books com- posed of fragments of various authors will also be permitted. It will be an indispensable condition, however, that the source of such extracts shall at all times be acknowledged. "6. On the other hand, it will be unlawful to pub- lish, without special permission of the holder of the copyright, any piece of music, in any collection of music used in musical academies. " 7. The rights of protection accorded to musical works will prohibit arrangements of music containing fragments from other composers, unless the consent of such composer be first obtained." A second international conference was held at Second offi- Beme from September 7 to 18, 1885, for the further «='al confer- consideration of the project. This was participated in ®'"'^' ^ ^ by representatives from sixteen countries, — Argen- tina, Belgium, Costa Rica, France, Germany, Great Britain, Haiti, Honduras, Holland, Italy, Paraguay, Sweden and Norway, Spain, Switzerland, and Tunis. The United States was also represented at that con- ference by a "listening delegate," Boyd Winchester, then the United States minister at Berne. The negotiations at Berne culminated at the third 3i8 COPYRIGHT Third ofScial conference, 1886 Berne con- vention, 1886: Authors and terms " Literary and artistic works " defined formal conference, of September 6 to 9, 1886, by agreement on a convention constituting an inter- national copyright union, the Union Internationale pour la Protection des CEuvres LittSraires et Artistiques, which was signed on September 9, by the plenipo- tentiaries of ten countries. Great Britain, Germany, Belgium, Spain, France, Haiti, Italy, Switzerland, Tunis and Liberia. At this conference the United States was represented only as in 1885. The convention included twenty-one articles be- sides an additional article and final protocol, article I being as follows: "The contracting States are con- stituted into an Union for the protection of the rights of authors over their literary and artistic works." It was provided (art. II) that authors of any one of the countries shall enjoy in the other countries the same rights as natives, on complying with the formalities prescribed in the country of origin, i. e., of first publication, or in case of simultaneous pub- lication, in the country having the shortest term of protection, for a period not exceeding the term of protection granted in the country of origin. This protection was extended (art. Ill) to the publishers within the Union of works whose authors belong to a country outside the Union. The expression "literary and artistic works " was defined (art. IV) by specification, including dramatic and musical works, but not mentioning photographs or actual works of architecture. Translations were protected (art. V) for ten years, which period should run for works published in incomplete parts (livrai- sons) from the publication of the last part, or in the case of volumes or serial collections (cahiers), from that of each volume, and in all cases from the thirty- first of December of the calendar year of publication. Authorized translations were protected (art. VI) as INTERNATIONAL CONVENTIONS 319 original works, but translators of works in the public domain could not oppose other translations. Repro- duction of newspaper or periodical articles was per- mitted (art. VII) unless expressly forbidden, but this prohibition could not apply to political discussions, news matter or "current topics" {faits divers). Lib- erty of extract from literary or artistic works other- wise was left (art. VIII) to domestic legislation or specific treaties. Protection was specifically extended (art. IX) to Perfonning the representation of dramatic or dramatico-musical "^stts works or translations thereof, and, on condition of express reservation, to musical works; and adapta- tions, arrangements, and other unauthorized indirect appropriations were specially included (art. X) among illicit reproductions subject to determination by the courts of the respective countries. The author indicated on a work, or the publisher Other of an anonymous or pseudonymous work, was given provisions (art. XI) authority to institute proceedings, but the tribunal might require certificate that the formalities in the country of origin had been accomplished. Pirated (contrefaii) works might be seized (art. XII) on importation, according to domestic law. The con- vention was not to derogate (art. XIII) from the right of each country to domestic control by legisla- tion or police. Existing works, not fallen into the public domain in the country of origin (art. XIV), were protected. The several countries reserved (art. XV) the right to make separate and particular treaty arrangements. An international office was estab- lished (art. XVI) under the name of "Office of the International Union for the Protection of Literary and Artistic Works," under the authority of the Swiss Confederation, the expenses to be borne by the signa- tory countries. Revision at future conferences was 320 COPYRIGHT Final protocol Ratification in 1887 provided for (art. XVII) with stipulation that altera- tions should not be binding except by unanimous consent. Accession of other countries was permitted (art. XVIII) on notice to the Swiss Confederation, and similar provision was made (art. XIX) for the accession of colonies. Ratification within one year (art. XX) and operation within three months there- after (art. XXI) and withdrawal by one year's notice of denunciation were provided for. The "additional article" provided that the convention should not affect existing conventions between the states, con- ferring more extended powers or containing other stipulations not contrary to the convention. On the exchange of ratifications September 5, 1887, a final protocol was agreed upon, extending article IV to cover photographs in those countries whose domes- tic legislation or treaty arrangements permitted such protection; extending article IX to choregraphic works in countries in which they were covered by domestic legislation; explicitly excepting mechanical music reproductions from protection ; and specifically referring to domestic or treaty arrangements, the protection afforded by article XIV to existing works not fallen into the public domain. The final protocol also provided for the organization of the interna- tional office under regulation by the Swiss Confed- eration, for French as the official language, for the allotment of expenses among the countries, and for other administrative details. The Berne convention, as signed in that city Sep- tember 9, 1886, by the representatives of ten nations, Great Britain, Germany, Belgium, Spain, France, Haiti, Italy, Switzerland, Tunis and Liberia, was rati- fied in the same city September 5, 1887, by exchange of ratifications on the part of all these powers except . Liberia, and became effective December 5, 1887. The INTERNATIONAL CONVENTIONS 321 French acceptance included Algiers and the other French colonies, the Spanish acceptance all Spanish colonies, and the British acceptance, India, Canada and Newfoundland, the South African and the Aus- tralian colonies. To these powers were later added Luxemburg (1888), Monaco (1889), Montenegro (1893), which however withdrew in 1900, Norway (1896), Japan (1899), Denmark (1903), Sweden (1904), and Great Britain's new colonies, the Trans- vaal and Orange Free State (1903), leaving three nations of first rank outside the Union, i. e., Austria- Hungary, Russia, and the United States, aside from the South American countries later associated in the Pan American Union. The revision of the Berne convention provided for Paris con- in art. XVII, which was to be made according to the ference, 1896 final protocol at a conference at Paris to be called by the French government within from four to six years, was not actually undertaken until 1896. When the signatory powers met in conference at Paris, April 15 to May 4, 1896, they adopted an "additional act," of four articles, which besides making verbal amend- ments for clarification, substantially modified articles II, III, V, VII, XII, XX, of the Berne convention and the first and fourth numbers of the final protocol ; and issued also an "interpretative declaration" as to both the Berne convention and the final protocol, the additional act and the interpretative declaration being sometimes cited together as "the Paris acts." The Additional Act of Paris (art. I and II) included Paris Addi- " posthumous works" amongst protected works, re- tionalAct placed the privileges given to publishers by a provi- sion extending protection to authors not subjects of unionist countries for works first published in one of those countries; extended the protection of transla- tions throughout the term of the original work, but 322 COPYRIGHT Paris Inter- pretative Declaration Ratification in 1897 with the proviso that the right for any language should expire after ten years unless the author had provided for a translation into that language; speci- fically included serial novels published in periodicals, and required indication of the source of articles re- produced from periodicals. The right to seize pirati- cal works was given to the "competent authorities" of each country without specific reference to impor- tation. Withdrawal by denunciation was made ap- plicable only to the country withdrawing, leaving the convention binding upon all others. It further provided (art. Ill) that the several coun- tries of the Union might accede to these additional acts separately, as might other countries, and for rati- fication within a year and enforcement within three months thereafter. The Declaration, simultaneously adopted, inter- preting the convention of Berne and the Paris addi- tional act, declared (i) that protection depends solely on accomplishment in the country of origin of the conditions and formalities prescribed therein; (2) that "published works" {ceuvres pubU6es) means works actually issued to the public {ceuvres iditSes) in one of the Union countries — "consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibi- tion of works of art, do not constitute publication"; and (3) that "the transformation of a novel into a play, or of a play into a novel" comes under the pro- tection provided. The Paris acts, as adopted May 4, 1896, were ratified September 9, 1897, the declaration becoming effective immediately and the additional act three months later. Both the additional act and the in- terpretative declaration were ratified by Belgium, France, Germany, Haiti, Italy, Luxemburg, Monaco, zgoS INTERNATIONAL CONVENTIONS 323 Montenegro, Spain, Switzerland and Tunis. Great Britain ratified only the additional act and not the in- terpretative declaration, while Norway, which had become a unionist country April 13, 1896, ratified only the interpretative declaration and not the addi- tional act. Thus from December 9, 1897, the Berne convention and the Paris acts together constituted, with the exceptions noted, the fundamental law of the International Copyright Union. A second conference for revision was called in 1908 Berlin con- by the German government, and met at Berlin Octo- *^'®°*^®' ber 14 to November 14, resulting in the signature on November 13, 1908, of a revised convention continu- ing or reconstituting the International Copyright Union and replacing by substitution the Berne con- vention and Paris acts in those states accepting it by ratification. To this conference the German govern- ment invited not only the signatory powers of the Union, then fifteen, — Belgium, Denmark (which had acceded to the Union in 1903), France, Germany, Great Britain, Haiti, Italy, Japan (1899), Luxem- burg, Monaco, Norway, Spain, Sweden (1904), Switzerland, and Tunis; but also non-unionist coun- tries, of which representatives were sent from twenty countries, — Greece, Holland, Portugal, Roumania and Russia, China, Persia and Siam, Liberia, the United States of America, Mexico, Guatemala and Nicaragua, Argentina, Chile, Colombia, Ecuador, Peru, Uruguay and Venezuela. The working com- mittees were made up exclusively from representa- tives of the signatory powers, only these countries participating in the votes; active participation other- wise was confined to representatives of countries ex- pecting to become signatory powers, Holland and Russia, while the other participants acted as observ- ing representatives or supplied information on request. 324 COPYRIGHT United The United States delegate, Thorvald Solberg, States' Register of Copyrights, was present only to make observations and report, with no power to vote or to take part in the discussions, as stated in the remarks for which, on October 15, he was called upon, as follows : " In 1885 and 1886, at the conferences convened to draft the convention to create the International Union for the Protection of Literary and Artistic Property, the United States was represented. At that time, however, it was not deemed possible to send a plenipotentiary delegate, nor could such a representative be sent to attend the first conference of revision which met at Paris in 1896. "When the present conference was arranged for — early in the year — the German ambassador at Washington wrote to the Secretary of State of the United States a letter explaining the purpose and scope of this congress, inviting the Government of the United States to send delegates. The ambassa- dor's letter explained that, in addition to delegates representing governments in the union, there would be present representatives from a considerable num- ber of non-union nations. It was further stated that the attendance of such delegates from non-union countries would be greeted with special pleasure. This because of the conviction that whatever might be the final position taken by the non-union coun- tries, or their laws, in relation to copyright, partici- pation in the proceedings of this conference by such delegates from non-union countries would at all events contribute to arouse and increase interest in the Berne Union and its beneficial work. "The German ambassador's letter further ex- plained that the delegates from non-union countries attending the conference would have full freedom of INTERNATIONAL CONVENTIONS 325 action; that they might confine themselves to follow- ing the discussions without taking any stand with regard to them, and that it would be left to the dis- cretion of the non-union governments as to whether they would empower their delegates to join the Berne Union. "The Government of the United States again finds it impracticable to send a delegate authorized to commit the United States to actual adhesion at this time to the Berne Convention. Nevertheless, it has been felt that the representation of the United States, even within the limitations indicated, might be bene- ficial : first, to indicate the sympathy of our Govern- ment with the general purposes of the International Copyright Union ; second, to secure such information regarding the proceedings of the conference as might prove valuable ; and third, to place (by means of such representation) at the disposal of the conference authoritative knowledge as to the facts of copyright legislation and procedure within the United States — information which it is hoped may be of use to the members of the conference in their deliberations." In response to the participation of non-unionist Welcome of countries, Prof. L. Renault of the French delegation, non-unionist Chairman at the working sessions of the conference, "'""' *® spoke of the wisely liberal practice of including non- unionist countries in the invitation, recognized "the difficulty which these countries find in passing through the halting places," which the Union had itself gone through, and referred with especial grati- fication to the representation of Holland, Russia and the United States. The closing days of the conference were darkened Death of hy the fatal illness of Sir Henry Bergne, head of the Sir Henry British delegation, who expired on November 15, the "®''^* day after the adjournment of the conference, at the 326 COPYRIGHT Berlin con- vention, 1908: "Literary and artistic works " de- fined Authors' rights successful culmination of work toward which he had given many years of active and effective life. The Berlin convention included thirty articles, covering the same ground as those of the Berne con- vention and the Paris acts, but somewhat differently arranged, so that comparison is not quite direct. Article I reconstitutes the International Copyright Union. The expression "literary and artistic works" is defined (arts. 2 and 3, covering previous arts. IV- VI) as including "all productions in the literary, sci- entific or artistic domain, whatever the mode or form of reproduction, such as : books, pamphlets and other writings; dramatic or dramatico-musical works; cho- regraphic works and pantomimes, the stage directions Cmise en scene') of which are fixed in writing or otherwise; musical compositions with or without words; drawings, paintings; works of architecture and sculpture; engravings and lithographs; illustra- tions; geographical charts; plans, sketches and plastic works relating to geography, topography, architec- ture, or the sciences. Translations, adaptations, ar- rangements of music and other reproductions trans- formed from a literary or artistic work, as well as compilations from different works, are protected as original works without prejudice to the rights of the author of the original work." The contracting coun- tries are pledged to secure protection fully for these categories and for photographic works and "works obtained by any process analogous to photography" and to protect "works of art applied to industry" so far as domestic legislation allows. The convention assures (art. 4, broadening art. II) to authors within the jurisdiction of a unionist coun- try for their works, whether unpublished or published for the first time in one of the countries of the Union, such rights in each other unionist country as domestic INTERNATIONAL CONVENTIONS 327 laws accord to natives, as well as the rights accorded by the convention, "not subject to any formality" and "independent of the existence of protection in the country of origin," and regulated exclusively ac- cording to the legislation of the country where the protection is claimed. The "country of origin" is "Country of defined as "for unpublished works, the country to <»"SiJ»" which the author belongs ; for published works, the country of first publication" and for works published simultaneously in several countries within the Union (as also in countries without the Union), the union- ist country granting the shortest term of protection. Published works (ceuvres publUes) are again defined as works that have been issued {ceuvres 6dit6es). "The representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibi- tion of a work of art and the construction of a work of architecture do not constitute publication." Authors of a unionist country first publishing in Broadened another country of the Union enjoy (art. 5) in the international latter country the same rights as national authors; P™ *'' °°^ and authors of a non-unionist country first publishing a work in any unionist country enjoy (art. 6) in that country the same rights as national authors and in the other Union countries the rights accorded by the convention. This article greatly broadens the scope of the convention, and by recognizing without formal- ities the rights of authors of non-unionist countries, makes it of a world-wide inclusion for works unpub- lished or first or simultaneously published within a unionist country, to the full extent of domestic pro- tection in each unionist country, whether the country of origin does or does not grant protection, — thus giving to citizens of the United States full protection throughout unionist countries on the sole condition of first or simultaneous publication within one of them. 328 COPYRIGHT Teim The convention takes the important step (art. 7) of providing for a uniform term of " the life of the au- thor and fifty years after his death" in place of the respective national terms, with the proviso that if this term should not be adopted uniformly by all the unionist countries, duration shall be regulated by the law of the country where protection is claimed, but cannot exceed the term in the country of origin. For photographic and analogous works, posthumous, anonymous or pseudonymous works, the term of protection is regulated by the law of the country where protection is claimed, but may not exceed the term in the country of origin. The exclusive right of transla- tion is assured (art. 8) for the entire term. Serial stories and other works published in newspapers or periodicals (art. 9) may not be reproduced, but other newspaper articles may be reproduced by another newspaper if reproduction has not been expressly forbidden, on acknowledgment of the source, but pro- tection is not extended to news of the day or press in- formation on current topics. The right of extract is to be governed (art. 10) by domestic legislation. Performing The public representation or performance of dra- tights, etc. matic, dramatico-musical or musical works, whether published or not (art. 11), and adaptation, drama- tization or novelization, etc. (art. 12), are fully in- cluded; and this protection applies (art. 13) to the mechanical reproduction of music, with the proviso that this application shall not be retroactive and shall be regulated in each country by domestic legislation. Infringing mechanical musical appliances may be seized on importation even though lawful in the country from which they come. Cinematograph and analogous productions of literary, scientific or artistic works are included (art. 14) as subject to copyright protection. INTERNATIONAL CONVENTIONS 329 The provisions as to the identification of author or Other publisher (art. 15) of the work, seizure of infringing provisions works (art. 16) and domestic regulation and super- vision (art. 17) are continued. The convention is applied (art. 18) to existing works, provided they have not fallen into the public domain in the country of origin or by expiration of the term in the country where protection is claimed. It is specially provided (art. 19) that the conven- National tion does not prevent "more favorable provisions" P°w«rs through domestic legislation "in favor of foreigners in general"; and the right of any country to make special treaties conferring more extended rights (art. 20) is continued. The provisions as to the International Bureau Organization made in the Berne protocol are continued (arts, provisions 21-23), and also those as to revision (art. 24) through conferences, to take place successively in the coun- tries of the Union. Accession of other countries (art. 25) and colonies (art. 26) is to be made as hereto- fore, by notification through Switzerland, and it is provided that acceding countries may adhere to the present convention or those of 1886 or 1896. The present convention is made (art. 27) to replace the Berne convention of 1886 and the Paris acts of 1896, but it is specifically provided that the states signa- tory to the present convention may declare their in- tention to remain bound by specific provisions of previous conventions. The convention was to be ratified (art. 28) not later than July i, 1910, and was to take effect (art. 29) three months thereafter, sub- ject to withdrawal of any country by denunciation on one year's notice, in which case the convention would still remain in force for the other countries. It is specially provided (art. 30) that the states which introduce into their legislation the new term of pro- 330 COPYRIGHT tection shall notify the Swiss government accord- ingly, and any renouncements of reservations shall be similarly notified. Ratification The Berlin convention was signed in that city No- in 1910 vember 13, 1908, by the representatives of Germany, Belgium, Denmark, Spain, France, Great Britain, Italy, Japan, Liberia, Luxemburg, Monaco, Norway, Sweden, Switzerland, Tunis, the signatories being in alphabetical order according to the French names of the countries. Ratifications were exchanged in Berlin June 9, 1910, and the convention became operative September 9, 1910. The convention was ratified with- out reservation by Germany, Belgium, Spain, Haiti, Liberia, Luxemburg, Monaco and Switzerland, and with reservations by France and Tunis (as to works of applied art) ; Japan (as to exclusive right of trans- lation and the public performance of musical works) ; Norway (as to works of architecture, periodical arti- cles and retrospective action). Denmark and Italy have not ratified the Berlin convention and therefore remain under the Berne convention and Paris addi- tional act and declaration. Great Britain will be en- abled under the new copyright act to accede to the Berlin convention, but has hitherto remained under the Berne convention and the Paris additional act, and Sweden, not having ratified, remains under the Berne convention and the Paris declaration. Portu- gal acceded in 191 1. Official The official documents of the International Copy- organ right Union, and especially accessions thereto, as well as current copyright information from all parts of the world, are given in the Droit d'Auteur, published monthly at Berne, under the able editorship of Prof. Ernest Rothlisberger, from the Bureau of the Union, as its official organ. Three years after the Berne convention, a congress INTERNATIONAL CONVENTIONS 331 of seven of the South American republics was held at Montevideo Montevideo, at which a convention with reference to congress, literary and artistic copyright was adopted January ^^^ II, 1889. The Montevideo convention has been rati- fied by Argentina (1894), Bolivia (1903), Paraguay (1889), Peru (1889), and Uruguay (1892), though not by Brazil and Chile, which were also participants in the congress. It was in general on the lines of the Berne convention, though no mention was made of unpublished works. A work first published or produced in any one of the signatory countries and protected in that country in accordance with its re- quirements, was also accorded in the other countries the rights secured in the first country, but not for a longer terra than was given in the country where protection was claimed. Dramatic works were speci- fically and playright impliedly protected. Provision was made for the Inclusion of countries outside of South America, under which Belgium, France, Italy and Spain have become parties to the convention, but only in relation with Argentina and Paraguay. In the winter of 1 889-1 890, the first Pan American Pan Ameri- conference was held in Washington, and at this a •'^ confer- committee, of which Andrew Carnegie was the United States member, reported in favor of the adoption of the Montevideo convention. No action seems to have been taken, but it is probably this convention which is referred to as the first Pan American copyright treaty. The second Pan American copyright treaty, according to this numeration, was that adopted at the Pan American conference in Mexico City, signed January 27, 1902, at the same time with the patent and trade-mark treaty. This copyright convention was modeled somewhat on the lines of the Berne con- vention. At the Pan American conference in Rio de Janeiro, 1906, what is spoken of as thfe third Pan 332 COPYRIGHT Mexico City conference, 1902 Mexico convention, igo2 American copyright treaty, was adopted, and signed August 23, 1906, but this was really not so much a new treaty, as a supplementary convention providing for the development and regulation of international bureaus at Havana and Rio de Janeiro, and its provi- sions were never put into operation. A fourth Pan American copyright treaty, distinct from patent and trade-mark protection, was adopted at the Pan Amer- ican conference at Buenos Aires in 1910 and signed August II, 1910. The Mexico copyright convention was not ratified by the Senate of the United States until 1908 and was proclaimed by the President, April 9, 1908; the Rio convention has never been accepted by the United States ; the Buenos Aires convention, replacing that of Mexico, was promptly approved by the U. S. Senate, February 16, 191 1, but is yet to be acted upon by the other countries. At the Pan American conference held in Mexico City in 1902, the second copyright convention was signed January 27, 1902, by representatives of Ar- gentina, Bolivia, Colombia, Costa Rica, Chile, the Dominican Republic, Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Paraguay, Peru, Uruguay and the United States, the delegates of Nic- aragua, Paraguay and the United States acting ad referendum. The first article of the Mexico convention formed the signatory states into "a Union for the purpose of recognizing and protecting the rights of literary and artistic property," which was defined (art. 2) as in- cluding "books, manuscripts, pamphlets of all kinds, no matter what subject they may treat of and what may be the number of their pages ; dramatic or melo- dramatic works; choral music and musical composi- tions, with or without words, designs, drawings, paintings, sculpture, engravings, photographic works; INTERNATIONAL CONVENTIONS 333 astronomical and geographical globes; plans, sketches and plastic works relating to geography or geology, topography or architecture, or any other science ; and finally, every production in the literary and artistic field, which may be published by any method of im- pression or reproduction." Copyright was defined (art. 3) as the exclusive right to dispose of the work, to publish, to sell and translate it or authorize trans- lation, and to reproduce it in any manner, in whole or in part. The "indispensable" condition of copyright was Indispensa- (art. 4) a petition from the author or his representa- ^^^ condition tive to the proper office, presumably of his own gov- ernment, with two deposit copies, and if he desired recognition in other countries, with additional copies for each country designated, which copies were to be forwarded to the respective governments accom- panied by a copy of the certificate of registration. Authors were secured (art. 5) in each country the rights granted by their own government within the term of protection of the country of origin — in works published in installments, the term of copy- right to date from the publication of each part. The country of origin was defined (art. 6) as that of first publication, or in case of simultaneous publication, that having the shortest period of protection. The name or acknowledged pseudonym on a work (art. 9) was accepted as indication of the author except on proof to the contrary. Authorized translations or those of non-protected Special works (art. 7) could be copyrighted as original works. Provisions but not to the exclusion of other versions of the lat- ter. Newspaper articles might be reproduced (art. 8) on acknowledgment of source and author's name, if given; addresses before legislative assemblies, court or public meetings (art. 10) might be freely repro- 334 COPYRIGHT Ratification Rio de Janeiro conference, igo6 duced, and extracts made (art. ii) in publications devoted to public instruction or chrestomathy. "Unauthorized indirect use" or reprint under pre- text of annotations or criticism (art. 12) was speci- fied as unlawful reproduction. Pirated copies might be seized (art. 13) in any of the countries, without prejudice to other punishment of the infringer. Each country was to exercise (art. 14) police power in its own jurisdiction. The convention was to become effective for each signatory power three months after communication of its ratification to the Mexican government, and any participant might withdraw after one year's notice of denunciation, the conven- tion to remain binding on the other powers. The signatory powers were to declare (art. 16) whether they would accept accession from countries unrepre- sented at the conference. The Mexico convention of 1902 was ratified by Guatemala (1902), Salvador (1902), Costa Rica (1902), Honduras (1904) and Nicaragua (1904), and by the United States (1908), perhaps also by the Dominican Republic and Cuba, and does not seem to be operative in the other countries whose representatives signed the treaty. At the third Pan American conference, held at Rio de Janeiro, in 1906, a convention was signed August 23, 1906, to protect patents of invention, drawings and industrial models, trade-marks and literary and artistic property, thus binding in one document pat- ent and copyright protection. This is usually referred to as the third Pan American treaty, but it has not been accepted by the United States, partly because of objections to patent provisions and the combina- tion of copyright provisions with them. This Rio convention re-adopted (art. i) the Mexico treaty, with modifications as stated in the conven- INTERNATIONAL CONVENTIONS 335 tion. These provided for two international bureaus Rio (art. 2) for the centralization of registrations (art. provisions 3), one at Havana for the United States, Mexico, Central American states, Panama, Colombia and Venezuela, Cuba, Haiti and San Domingo, and one at Rio de Janeiro for Brazil, Argentina and the other South American states, both to have (art. 4) identi- cal systems and books, and to exchange monthly authenticated copies of documents, so that the two should practically constitute one bureau. The proper bureau was to receive (art. 5) from each country authenticated copies of its own registrations of pat- ents and copyrights for transmission (art. 6) to the other countries, where they should be given full faith and credit, unless the proper bureau be notified to the contrary within one year. The registration in one country (art. 7) should have the same effect in each other country, as if made in all, and the term of pro- tection was made that provided by the legislation of the country "where the rights originated or have been recognized," or, if no term is specified, then for pat- ents fifteen years, for designs ten years, both subject to renewals, and for literary and artistic copyright life and 25 years. The expenses of the bureau were to be guaranteed (art. 8) by the several countries in the same proportion as for the bureau of American Re- publics (now called the Pan American Union) at Washington ; the two bureaus were placed under the protection of Cuba and Brazil under identical regu- lations, made by concurrence of the two governments with the approval of the other countries; and an additional registration fee, equivalent to $5, col- lected in the country of original registration, was to be equally divided for the maintenance of the two bureaus. The bureaus were authorized (art. 9) to (i) collect and publish information, (2) print an ofl&cial 336 COPYRIGHT review, (3) to advise the respective governments of defects, (4) to arrange for future international con- ferences, (5) to make yearly report, (6) to exchange publications with other institutions, and (7) to act as cooperative agents for each of the governments con- cerned. The convention was to become effective (art. 10) on the establishment of one of the bureaus for such countries as should accede to the new conven- tion, the other countries remaining bound by the former convention; and each of the bureaus was to be established (art. 11) as soon as two thirds of the countries in its own group should ratify the con- vention, and the first bureau established might act temporarily for the other countries. It was finally provided (art. 12) that Brazil should be the inter- mediary for exchange of ratifications. Ratification The Rio convention of 1906 was ratified only by Guatemala (1907 and 1909), Salvador (1907), Nica- ragua (1908) and Costa Rica (1908), and by Chile (1910) ; and it never became effective. Buenos At the fourth Pan American conference, held at Aires confer- Buenos Aires in 1910, — twenty powers, including conve^ion ^^^ ^^^ South American countries except Bolivia, 1910 - being represented, — the fourth copyright conven- tion was signed August 11, 191 o. It undertakes to "acknowledge and protect the rights of literary and artistic property," and includes (art. 2) with dramatic and musical works those of a choregraphic character. It retains (art. 4) the definition of the scope of copy- right. The provision as to the indicated author is continued (art. 5) in more precise language. It sub- stitutes for the previous cumbrous method the simple provision (art. 3) "the acknowledgment of a copy- right obtained in one State, in conformity with its laws, shall produce its effects of full right in all the other States without the necessity of complying with INTERNATIONAL CONVENTIONS 337 any other formality, provided always there shall ap- pear in the work a statement that indicates the reser- vation of the property right." It continues (art. 6) the Mexico provisions as to copyright duration. The country of origin is further defined (art. 7) as "that of its first publication in America," and in case of simultaneous publication in several of the signatory countries, then that having the shortest term of pro- tection. It specially provides (art. 8) that a work shall not acquire copyright through subsequent editions. It continues also (art. 9) the provisions for copy- right in translations. It provides (art. 11) for the protection of "literary, scientific, or artistic writings, . . . published in newspapers or magazines." But other articles may be freely reproduced, on acknow- ledgment of the source, which, however, is not required for "news and miscellaneous items published merely for general information," — the provisions as to ex- tracts in journals for public instruction or chresto- mathy (art. 12) and those as to public addresses (art. 10) subject, however, to the internal laws of each state, being continued. The provisions as to unlawful re- production (art. 13) are continued, and seizure of pirated copies (art. 14), police powers (art. 15) and provisions for ratification (art. 16) are the same as in the Mexico convention, except that the ratifications and denouncements are to be communicated to the Argentine government. This treaty, approved by the United States Senate, February 16, 191 1, and signed by the President, waits other ratification to become effective. The Mexico convention was signed by the United Attorney- States delegates ad referendum, and before submitting General's it to the Senate for ratification, the President ob- ratification tained through the Secretary of State an opinion from the Department of Justice, as to any reason against 338 COPYRIGHT Relation with impor- tation provi- sions its submission for ratification, especially with refer- ence to the act of 1891. Acting Attorney-General Hoyt replied in a confidential report of June 3, 1902, since made public, after quoting the prohibition of importation in section 3 of the act of 1891: "In the convention now in question there is no inhibition against such importations as are prohibited by said section 3, unless it can be said that such convention is 'an international agreement which provides for reciprocity in the granting of copyrights, by the terms of which agreement the United States of Amer- ica may, at its pleasure, become a party to such agree- ment,' as provided in section 13 of the same act. It is a matter of grave doubt whether this convention, made by the United States originally, is such an 'international agreement.' It is therefore quite prob- able that its ratification would except the authors of the nations signing it from the provisions of said sec- tion 3 of the act of March 3, 1891, leaving the authors of other countries still subject to such provisions. Your attention is directed to the fact that an affirma- tive answer to article 16 of the convention would also except from the provisions of said section 3 all coun- tries that might hereafter adopt said convention. There appears to be no legal impediment to the rati- fication of this convention, nor would it constitute a breach of faith toward other countries ; and in point- ing out the probable effect of some of its provisions I do not intend thereby to express or intimate an opin- ion that it ought not to be ratified." The question of the relation between treaty provisions and domestic legislation especially affects copyright arrangements and has been the subject of discussion and a matter of difficulty in England and other countries as well as in the United States. The Senate did not act finally upon the Mexico convention until 1908, when it was duly INTERNATIONAL CONVENTIONS 339 ratified, and this precedent opened the way for more prompt ratification of the Buenos Aires convention. The United States, as a party only to the Pan United American Union and not a member of the Inter- States in- national Copyright Union under the Berne-Berlin reUtions* conventions, has not secured for its citizens general rights of copyright in other countries, without repeti- tion of formalities, and such rights are secured only in the countries designated by Presidential proclama- tion and according to the formalities of their domes- tic legislation. It seems, however, that citizens of the United States may obtain general protection throughout the unionist countries by publishing in a unionist country simultaneously with first publication in the United States, and thus coming under the protective provisions of the Berlin convention. The Mexico convention permits citizens of the United States to obtain copyright in other countries rati- fying that convention, by deposit at Washington of extra copies for transmission to countries designated, with certified copy of the registration. When the Buenos Aires convention is ratified by other powers nothing more will then be required than the usual application and deposit at Washington and notice of the reservation of rights, preferably in connection with the copyright notice, of which "all rights re- served for all countries" is the most comprehensive form. Under section 8 of the act of 1891, the President "Pro- " proclaimed " from time to time the existence of recip- claimed" rocal relations with other countries, which permitted *'°"° '®^ their citizens to obtain copyright in the United States under the act, and American citizens to obtain pro- tection under their respective copyright laws. The question of the status of these countries under the act of 1909 was solved by the proclamation of the 340 COPYRIGHT Mechanical music reci- procity President on April 9, 1910, stating that "satisfactory evidence has been received that in Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Ger- many, Great Britain and her possessions, Italy, Mexico, the Netherlands and her possessions, Nor- way, Portugal, Spain and Switzerland, the law per- mits ... to citizens of the United States the benefit of copyright on substantially the same basis as to citizens of those countries," and proclaiming "that the citizens or subjects of the aforementioned coun- tries are and since July i, 1909, have been entitled to all the benefits of the said Act other than the benefits under section i, (e), thereof, as to which the inquiry is still pending" — the exception being as regards mechanical music. To this list of countries, Luxem- burg was added by proclamation of June 29, 1910, and Sweden by that of May 26, 191 1. Under date of December 8, 1910, the first procla- mation with respect to the international protection of mechanical music was made by the President, declar- ing the existence of reciprocal relations with Ger- many. Belgium, Luxemburg, and Norway were added by proclamation of June 14, 191 1. It may be repeated, to make the list complete, that by the ratification in 1908 of the Mexico City convention of 1902, Guatemala, Honduras, Nicara- gua and Salvador, as well as Costa Rica, have recip- rocal copyright relations with the United States, making in all twenty-four countries (including Japan under the treaties excepting translations, and China under the limited provisions of the treaty of 1903) with which the United States has international copyright relations. XIX THE INTERNATIONAL COPYRIGHT MOVEMENT IN AMERICA Simultaneously with the earliest legislation for in- initial en- ternational copyright among European states, there deavor in was a movement in the same direction in the United ^g „ ' States. In the Twenty-fourth Congress, February 2, 1837, Henry Clay presented to the Senate an address of British authors asking for copyright protection in this country. This petition was signed by Thomas Moore and fifty-five others, and was later supplemented by additional signatures and by an American petition to the same effect. The text of the address is as follows, the reference The British in paragraph seven being to a letter by Dr. M'Vickar, ^^^^ss printed in the New York American, November 19, 1832: "The humble address and petition of certain authors of Great Britain, to the Senate and House of Representatives of the United States, in Congress assembled, respectfully showeth — " I. That your petitioners have long been exposed to injury in their reputation and property, from the want of a law by which the exclusive right to their respective writings may be secured to them in the United States of America. "2. That, for want of such law, deep and extensive injuries have, of late, been inflicted on the reputation and property of certain of your petitioners; and on the interests of literature and science, which ought to constitute a bond of union and friendship between the United States and Great Britain. 342 COPYRIGHT The British "3. That, from the circumstance of the English address language being common to both nations, the works of British authors are extensively read throughout the United States of America, while the profits arising from the sale of their works may be wholly appro- priated by American booksellers, not only without the consent of the authors, but even contrary to their express desire — a grievance under which your peti- tioners have, at present, no redress. "4. That the works thus appropriated by Ameri- can booksellers are liable to be mutilated and altered, at the pleasure of the said booksellers, or of any other persons who may have an interest in reducing the price of the works, or in conciliating the supposed principles or prejudice of purchasers in the respective sections of your union: and that, the names of the authors being retained, they may be made responsible for works which they no longer recognize as their own. "5. That such mutilation and alteration, with the retention of the authors' names, have been of late actually perpetrated by citizens of the United States : under which grievance, your petitioners have no redress. "6. That certain of your petitioners have recently made an effort in defence of their literary reputation and property, by declaring a respectable firm of English publishers in New York to be the sole author- ized possessors and issuers of the works of the said petitioners; and by publishing in certain American newspapers, their authority to this effect. " 7. That the object of the said petitioners has been defeated by the act of certain persons, citizens of the United States, who have unjustly published, for their own advantage, the works sought to be thus pro- tected; under which grievance your petitioners have, at present, no redress. INTERNATIONAL IN AMERICA 343 "8. That American authors are injured by the The British non-existence of the desired law. While American address publishers can provide themselves with works for publication by unjust appropriation, instead of by equitable purchase, they are under no inducement to afford to American authors a fair remuneration for their labours: under which grievance American authors have no redress but in sending over their works to England to be published, an expedient which has become an established practice with some of whom their country has most reason to be proud. "9. That the American public is injured by the non-existence of the desired law. The American pub- lic suffers, not only from the discouragement afforded to native authors, as above stated, but from the un- certainty now existing as to whether the books pre- sented to them as the works of British authors, are the actual and complete productions of the writers whose names they bear. "id. That your petitioners beg humbly to remind your Honours of the case of Walter Scott, as stated by an esteemed citizen of the United States, that while the works of this author, dear alike to your country and to ours, were read from Maine to Georgia, from the Atlantic to the Mississippi, he received no remu- neration from the American public for his labours; that an equitable remuneration might have saved his life, and would, at least, have relieved its closing years from the burden of debts and destructive toils. "11. That your petitioners, deeply impressed with the conviction that the only firm ground of friendship between nations, is a strict regard to simple justice, earnestly pray that your Honours, the representa- tives of the United States in Congress assembled, will speedily use, in behalf of the authors of Great Britain, 344 COPYRIGHT your power 'of securing to the authors the exclusive right to their respective writings.' " Henry Clay The British address was referred to a select commit- report, 1837 tee, whose members were Clay, Webster, Buchanan, Preston and Ewing, which reported favorably a bill for international copyright. The report took high ground in favor of the rights of authors : "That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius, is incon- testable; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind. . . . It being established that literary property is entitled to legal protection, it results that this protection ought to be afforded wherever the property is situ- ated. . . . We should be all shocked if the law tol- erated the least invasion of the rights of property, in the case of merchandise, whilst those which justly belong to the works of authors are exposed to daily violation, without the possibility of their invoking the aid of the laws. ... In principle, the committee perceive no objection to considering the republic of letters as one great community, and adopting a sys- tem of protection for literary property which should be common to all parts of it." A prophecy The address of British authors and the Clay report ^LZ^^^ called forth a little volume of " Remarks on literary property" by Philip H. Nicklin, a Philadelphia pub- lisher, printed by his own firm of "law booksellers" in 1838, and dedicated to Henry C. Carey, which, though somewhat caustic in its criticisms of some of the arguments put forward by the British authors, heartily favored international copyright. The vol- ume, in fact, contains a glowing prophecy of what union INTERNATIONAL IN AMERICA 345 was realized in large measure in the convention of Berne a half century later, the more interesting as coming from an American publisher, who was per- haps first to realize in thought the world-wide pos- sibilities of the movement then in its beginnings. He suggested that Congress should empower the President to appoint commissioners to meet in Eu- rope with similar representatives from other nations "to negociate for the enactment of a uniform law of literary property, and the extension of its benefits to all civilised nations. It should be a new chapter of the Jus Gentium, and should be one law {iisdem ver- bis) for all the enacting nations, extending over their territories in the same manner as our law of copyright extends over the territories of our twenty-six sover- eign states; so that an entry of copyright in the proper office of one nation should protect the author in all the others." "Public opinion has made such progress in the "One various civilized nations, as would justify a great J«stlaw" movement in favour of establishing a universal re- public of letters; whose foundation shall be one just law of literary property embracing authors of all nations, and being operative both in peace and war. Besides the great impulse that would be given by such a law, to the improvement of literature and intellec- tual cultivation, the fellowship of interest thus created among the learned men throughout the world, would in time grow into a bond of national peace. Authors would soon consider themselves as fellow-citizens of a glorious republic, whose bound- aries are the great circles of the terraqueous globe; and instead of lending their talents for the purpose of exasperating national prejudice into hostile feeling, to further the views of ambitious politicians, they would exert their best energies to cultivate charity among 346 COPYRIGHT Clay bills, 1837-43 Palmerston invitation, 1838 Efforts 1840-48 the numerous branches of the Human family, to rub off those asperities which the faulty legislation of the dark ages has bequeathed to the present generation, and to extend the blessings of Christianity to the ends of the earth." The Clay report, presented February 16, 1837, was accompanied by a bill drawn by Clay, extending copyright to British and French authors for works thereafter published, on condition of the issue of an American edition simultaneously with the foreign edition or within one month after deposit of the title in America, but it never came to a final vote, though reintroduced by Clay in successive Congresses De- cember 13, 1837, December 17, 1838, January 6, 1840, and January 6, 1842. In 1840, January 8, the bill was reported back from the Judiciary Committee without recommendation or approval. The bill was also in- troduced into the House of Representatives by John Robertson, July 7, 1838, and by J. L. Tillinghast, June 6, 1840, but here also there was no action. An invitation was extended by Lord Palmerston in 1838 for the cooperation of the American government in an international arrangement with Great Britain, but nothing came of it. Dr. Francis Lieber, a well-known publicist, ad- dressed to Senator Preston , in 1 840, a letter "On inter- national copyright," prepared in cooperation with George Palmer Putnam, and issued in pamphlet form by the house of Wiley & Putnam. Charles Dick- ens's tour in 1841 stimulated interest in the subject, and there were high hopes of some result. In 1843 Mr. Putnam procured the signatures of ninety-seven publishers, printers, and binders to a petition which was presented to Congress, setting forth that the absence of international copyright was "alike injuri- ous to the business of publishing and to the best INTERNATIONAL IN AMERICA 347 interests of the people." A counter-memorial from Philadelphia objected that international copyright "would prevent the adaptation of English books to American wants." No result came from these peti- tions, nor from one presented in 1848 by William CuUen Bryant, John Jay, George P. Putnam, and others. In 1 852 a petition for International copyright, signed Everett by Washington Irving, James Fenimore Cooper and treaty, 1853 others, was presented to Congress; and in 1853 Ed- ward Everett, then Secretary of State, negotiated through the American Minister in London, John F. Crampton, a treaty providing simply that authors entitled to copyright in one country should be entitled to it in the other, on the same conditions and for the same term. This treaty was laid before the Senate in a message from President Fillmore, February 18, 1853. The Committee on Foreign Relations of the Senate, through Charles Sumner, reported the Everett treaty favorably, but it was tabled in Committee of the Whole. Five New York publishers addressed a letter to Mr. Everett, sup- porting a convention, providing the work should be registered in the United States before publication abroad, issued here within thirty days after pub- lication abroad, and wholly manufactured in this country. It was in this year that Henry C. Carey published his famous "Letters on international copyright," in which he held that ideas are the common property of society, and that copyright is therefore indefensible. Several remonstrances were also presented against the treaty from citizens of dif- ferent states. The next year the amendatory article to the Everett treaty was laid before the Senate in a message from President Pierce of February 23, 1854, but no action resulted. 348 COPYRIGHT Mollis bills, 18S&-60 International Copyright Association,^ 1868 Baldwin bill and re- port, 1868 In the Thirty-fifth Congress in 1858, Edward J. Morris, of Pennsylvania, introduced into the House of Representatives a bill on the basis of remanufac- ture by an American publisher within thirty days of publication abroad, but it does not seem to have been considered, though it was reintroduced by him in i860. The matter slumbered until 1868 — after Dick- ens's second visit in 1867 — when a committee con- sisting of George P. Putnam, S. Irenaeus Prime, Henry Ivison, James Parton, and Egbert Hazard issued an appeal for "justice to authors and art- ists," calling a meeting, which was held under the presidency of William CuUen Bryant, April 9, 1868. An International Copyright Association was then or- ganized, with Mr. Bryant as president, George Wil- liam Curtis as vice-president and E. C. Stedman as secretary, whose primary object was "to promote the enactment of a just and suitable international copy- right law for the benefit of authors and artists in all parts of the world." A memorial to Congress, asking early attention for a bill " to secure in all parts of the world the right of authors," but making no recom- mendations in dptjul, was signed by one hundred and fifty-three persons, including one hundred and one authors and nineteen publishers. In the Fortieth Congress, in accordance with in- structions to the Committee on the Library, moved by Samuel M. Amell of Tennessee, January 16, 1868, to report on international copyright "and the best means for the encouragement and advancement of cheap literature and the better protection of au- thors," — a bill was introduced in the House, Febru- ary 21, by J. D. Baldwin of Massachusetts, which provided for copyright on foreign books wholly manufactured here and published by an American INTERNATIONAL IN AMERICA 349 citizen. The Committee's report said : " We are fully persuaded that it is not only expedient, but in a high degree important to the United States to establish such international copyright laws as will protect the rights of American authors in foreign countries and give similar protection to foreign authors in this country. It would be an act of national honor and justice in which we should find that justice is the wisest policy for nations and brings the richest re- ward." The bill was, however, recommitted and never more heard of. In 1870, what has since been known as the Claren- Clarendon don treaty was proposed to the American govern- treaty, 1870 ment by Lord Clarendon on behalf of the British government, through Sir Edward Thornton, then British Minister at Washington. This was modeled on the treaties existing between Great Britain and other European nations, and provided that an author of either country should have full protection in the other country to the extent of its domestic law, on the sole condition of registration and deposit in the other country within three months after first publication in the country in which the work first appeared, the con- vention to continue in force for five years, and thence from year to year, unless twelve months' notice of termination were given. This was later criticised in Harper & Brothers' letter of November 25, 1878, as a scheme "more in the interest of British publishers than either of British or American authors," on the ground that British publishers would secure Ameri- can with British copyright, and give no opportunity to American houses to issue works of English authors. The next year the following resolution, offered by Cox bUl and S. S. Cox, was passed by the House, December 18, resolution, 1871: '''' - "Resolved, That the Committee on the Library be 350 COPYRIGHT directed to consider the question of an international copyright, and to report to this House what, in their judgment, would be the wisest plan, by treaty or law, to secure the property of authors in their works, without injury to other rights and interests; and if in their opinion Congressional legislation is the best, that they report a bill for that purpose." Mr. Cox had himself presented in the Forty-second Congress, December 6, 1871, a bill for international copyright on a basis of reciprocity, providing foreign works should be wholly manufactured in the United States and published by American citizens, and be registered, deposited and arrangements for such pub- lication made within three months of first publication in the foreign country. This bill was supported in Committee of the Whole by speeches from Archer Stevenson, Jr., of Maryland, and J. B. Storm, of Pennsylvania, but opposed by William D. Kelley, of Pennsylvania. The Apple- Mr. Cox's resolution was acted upon in 1872 by the ton proposal, jjg^ Library Committee, which invited the coopera- tion of authors, publishers, and others interested in framing a bill. At meetings of New York publishers, January 23 and February 6, 1872, a bill prepared by W. H. Appleton and accepted by A. D. F. Ran- dolph, Isaac E. Sheldon, and D. Van Nostrand, of a committee, was approved by a majority vote. It provided for copyright on foreign books issued under contract with an American publisher, "wholly the product of the mechanical industry of the United States," and registered within one month and pub- lished within three months from the foreign issue, stipulating that if a work were out of print for three months the copyright should lapse. This was in line with a letter printed by W. H. Appleton in the Lon- don Times, October, 1871, denying that there was any INTERNATIONAL IN AMERICA 351 disposition in the United States to withhold justice from English authors, but objecting to any "kind of legal saddle for the English publisher to ride his author into the American book-market " ; in response to which Herbert Spencer, John Stuart Mill, Froude, Carlyle, and others had signed a memorial to Lord Granville expressing a willingness to accept a copyright on the condition of confining American copyright to Ameri- can assigns of English authors, and excluding English publishers. Mr. Appleton's bill was opposed in a mi- nority report by Edward Seymour, of the Scribner house, on the ground that it was " in no sense an inter-^ national copyright law, but simply an act to protect American publishers" ; that the desired "protection" could be evaded by English houses through an Ameri- can partner ; and that the act was objectionable in pro- hibiting stereos, in failing to provide for cyclopaedias, and in enabling an American publisher to exclude revised editions. A meeting of Philadelphia publishers, January 27, Philadelphia 1872, opposed international copyright altogether. Protest, 1873 in a memorial declaring that "thought, when given to the world, is, as light, free to all"; that copy- right is a matter of municipal (domestic) law; that any foreigner could get American copyright by becoming an American citizen; and that "the good of the whole people and the safety of republican insti- tutions" would be contravened by putting into the hands of foreign authors and "the great capitalists on the Atlantic seaboard " the power to make books high. The Executive Committee of the Copyright Asso- The Bristed elation met in New York, February 2, 1872, and proposal, put forward Charles Astor Bristed's bill securing, * ^* after two years from date of passage, to citizens of other countries granting reciprocity, all the rights of American citizens. 352 COPYRIGHT Eelley reso- lution, 1872 Congres- sional hear- ings Beck-Sher- man bill, 1872 Probably as an outcome of the Philadelphia meet- ing, William D. Kelley, of Pennsylvania, introduced into the House, February 12, 1872, and caused to be referred to the Library Committee, the following reso- lution: "Whereas it is expedient to facilitate the re- production here of foreign works of a higher character than that of those now generally reprinted in this country; and whereas it is in like manner desirable to facilitate the reproduction abroad of the works of our own authors ; and whereas the grant of monopoly priv- ileges, in case of reproduction here or elsewhere, must tend greatly to increase the cost of books, to limit their circulation, and to increase the already existing obstacles to the dissemination of knowledge: There- fore, Resolved, That the Joint Committee on the Li- brary be, and it hereby is, instructed to inquire into the practicability of arrangements by means of which such reproduction, both here and abroad, may be facil- itated, freed from the great disadvantages that must inevitably result from the grant of monopoly privi- leges such as are now claimed in behalf of foreign authors and domestic publishers." The Library Committee gave several hearings on the subject, February 12 and later, and among other contributions to the discussion received a letter from Harper & Brothers taking ground that "any mea- sure of international copyright was objectionable because it would add to the price of books, and thus interfere with the education of the people"; and a suggestion from John P. Morton, of Louisville, to permit general republication on payment of a ten per cent royalty to the foreign author. The same sugges- tion, providing for five per cent royalty, as brought forward by John Elderkin, was introduced, in a bill, February 21, 1872, by James B. Beck of Kentucky, in the House, and John Sherman of Ohio, in the Senate. INTERNATIONAL IN AMERICA 353 The Committee, in despair over these conflicting Morrill re- opihions, presented the celebrated Morrill report of P°'*« **73 February 7, 1873, Senator Lot M. Morrill being the chairman, including a tabular comparison of the prices of American and English books. It said that "there was no unanimity of opinion among those in- terested in the measure," and concluded: " In view of the whole case, your committee are sat- isfied that no form of international copyright can fairly be urged upon Congress upon reasons of general equity, or of constitutional law; that the adoption of any plan for the purpose which has been laid before us would be of very doubtful advantage to American authors as a class, and would be not only an unquestionable and permanent injury to the manufacturing inter- ests concerned in producing books, but a hindrance to the diffusion of knowledge among the people, and to the cause of universal education ; that no plan for the protection of foreign authors has yet been devised which can unite the support of all or nearly all who profess to be favorable to the general object in view; and that, in the opinion of your committee, any pro- ject for an international copyright will be found upon mature deliberation to be inexpedient." This was decidedly a damper to the cause, and the Banning bill, movement lapsed for some years, a bill submitted to ^874 the House on February 9, 1874, by Henry B. Banning of Ohio, extending to authors the protection given to inventors, on a basis of international reciprocity, at- tracting meanwhile little attention. The question rested until 1878, when, under date of The Harper November 25, Harper & Brothers addressed a letter proposal and to William M. Evarts, Secretary of State, suggesting '^*"' ^^'* that previous failures were due "to the fact that all such propositions have originated from one side only, and without prior joint consultation and intelligent 354 COPYRIGHT discussion," reiterating " that there was no disinclina- tion on the part of American publishers to pay British authors the same as they do American authors," and that "American publishers simply wished to be as- sured that they should have the privilege of printing and publishing the books of British authors " ; indicat- ing "the likelihood of the acceptance by the United States of a treaty which should recognize the interests of all parties"; and proposing a conference or com- mission of eighteen Americans and Englishmen — three authors, three publishers and three publicists to be appointed by each side, by the American Secre- tary of State and the British Secretary for Foreign Affairs — which should consider and present the de- tails of a treaty. A suggested They also presented, as a suggested basis of action, what came to be known as the ' ' Harper draft, ' ' a mod- ification of the Clarendon treaty, providing that there should be registration in both countries before pub- lication in the country of origin; that international registration should be in the name of the author : if a citizen of the United States, at Stationers' Hall, Lon- don ; if a subject of her Majesty, at the Library of Con- gress, Washington; and that "the author of any work of literature manufactured and published in the one country shall not be entitled to copyright in the other country unless such work shall be also manufactured and published therein, by a subject or citizen thereof, within three months after its original publication in the country of the author or proprietor; but this pro- viso shall not apply to paintings, engravings, sculp- tures, or other works of art; and the word 'manufac- ture' shall not be held to prohibit printing in one coun- try from stereotype plates prepared in the other and imported for this purpose." This draft was approved by fifty- two leading Amer- INTERNATIONAL IN AMERICA 355 ican authors, including Longfellow, Holmes, Emerson, Approval of and Whittier, in a memorial dated August, 1880. The ^l^^^^ American members of the International Copyright Committee, appointed by the Association for the Re- form and Codification of the Law of Nations, John Jay, James Grant Wilson and Nathan Appleton, also memorialized the Secretary of State, under date of February 11, 1880, in favor of this general plan, specifying "within from one to three months" as the manufacturing limit. It was also approved by the great body of American publishers, although the Put- nam, Scribner, Holt and Roberts firms in signing took exception to certain of the restrictions, especially to the time limit of three months. George Haven Put- nam set forth the views of his house in a paper before the New York Free Trade Club, January 29, 1879, afterward printed as Economic Monograph no. XV., "International copyright considered in some of its relations to ethics and political economy." In this he suggested simultaneous registration in both countries, republication within six months, and restriction of copyright protection here for the first ten years of the term to books printed and bound in the United States and published by an American citizen. An interesting series of replies from American au- thors, publishers, etc., as to methods for international copyright, to queries from the Publishers' Weekly will be found in v. 15, commencing with no. 7, February 15, 1879. The " Harper draft " was submitted in September, Granville 1880, by Tames Russell Lowell, then American Min- negotiations, ister at London, to Earl Granville, who replied, March, 1881, that the British government favored such a treaty, but considered an extension of the re- publication term to six months essential, and to twelve months much more equitable. In the same month 356 COPYRIGHT Robinson and Collins bills, 1882-83 American Copyright League Dorsheimer bill, 1884. the International Literary Association adopted a re- port favoring an agreement, but protesting against the manufacturing clause and time limit. This posi- tion was also taken at several meetings of London publishers, and F. R. Daldy was sent to America to further the English view. Sir Edward Thornton, Brit- ish Minister at Washington, was instructed to pro- ceed to the consideration of the treaty, provided the term for reprint could be extended, and both Presi- dent Garfield and Secretary Blaine were understood to favor the completion of a treaty. With the death of Garfield the matter ended for the time. A bill dealing with the whole question of copyright, domestic and foreign, was introduced March 27, 1882, by W. E. Robinson of New York, and December 10, 1883, another copyright bill was introduced by P. A. Collins of Massachusetts, but neither emerged from the Committee on Patents, to which they were referred. The question came to the front again in 1884. A new copyright association, the American Copyright League, had been organized in 1883, chiefly through the efforts of George P. Lathrop, Edward Eggleston, and R. W. Gilder, and there was a general revival of interest in international copyright. On January 9, 1 884, William Dorsheimer, of New York, introduced into the House his bill for international copyright, which provided for the extension of copyright to citizens of countries granting reciprocal privileges, so soon as the President should issue his proclamation accepting such reciprocity, for twenty-five years, but termina- ble earlier on the death of the author. This bill was the occasion of a general discussion. The Copyright League addressed a letter to Mr. Dorsheimer urging the modification of the above limitations, and it was particularly pointed out that the confining of copy- right to an author's lifetime would render literary INTERNATIONAL IN AMERICA 357 property most insecure. The League also addressed Criticisms a letter to the Secretary of State, urging the comple- ""* changes tion of a treaty with Great Britain, to which F. T. Fre- linghuysen replied, January 25, 1884, that while the negotiation as to the Harper draft had not been inter- rupted, he thought the object might be attained by a simple amendment to our present copyright law, based on reciprocity, after which a simple convention would suffice to put the amendment in force. Mr. Dorsheimer's bill was referred to the House Commit- tee on the Judiciary, and reported favorably, with amendments extending the copyright term to twenty- eight years, without regard to the death of the au- thor, with renewal for fourteen years. The amended bill also provided that such copyright should cease in case reciprocity was withdrawn by the other country; that there should be no copyright in works already published, and that the provisions of the domestic copyright law should, as far as applicable, extend also to foreign copyrights. On the 19th of February Mr. Dorsheimer moved to make his bill the special order for February 27, but his motion failed of the necessary two-thirds vote, 155 voting aye, 98 nay and 55 not voting. There was considerable opposition on the part of those who insisted upon the re-manufacture of foreign books in this country, and Mr. Dorsheimer privately expressed himself as willing to accept, al- though not willing to favor, amendments in that di- rection if they were necessary to insure the passage of the bill. A circular letter of inquiry sent out by the Pub- American Ushers' Weekly early in 1884, showed a general de- publishers' sire on the part of American publishers in favor of ^^^ ^^ international copyright. The replies were summar- ized in V. 25 from March, 1884. Of fifty-five lead- ing publishers who answered, fifty-two favored and 358 COPYRIGHT Hawley bill, 1885 Chace bill, 1886 only three opposed international copyright. Out of these, twenty-eight advocated international copy- right pure and simple; fourteen favored a manufac- turing clause; the others did not reply on this point. Congress adjourned, however, without taking definite action. President Arthur, in his message of December, 1884, put himself on record as favoring copyright on the basis of reciprocity. A bill brought forward in the Publishers' Weekly of December 6, 1884, was in- tended by a form admitting of easy amendment, to fa- cilitate the passage of some kind of bill extending the principle of copyright to citizens of foreign countries under limitations set forth in subsequent sections of the bill. The Dorsheimer bill was reintroduced by W. E. English of Indiana, January 5, 1885, and on January 6 Senator Hawley introduced a general bill into the Senate. This latter, which covered all copyright articles, was understood to be favored by the Copyright League; it extended copyright to citi- zens of foreign states, on a basis of reciprocity, for books or other works published after the passage of the bill, by repealing those parts of the Revised Stat- utes confining copyright to "citizens of the United States or residents therein." No action was taken, however, on either the Dorsheimer or the Hawley bill. In his first annual message, 1885, President Cleve- land referred favorably to the negotiations at Berne, and with the opening of the Forty-ninth Congress two bills were introduced into the Senate, that of Sen- ator Hawley, December 7, 1885, being essentially his bill of the previous year, and that of Senator Chace, January 21, 1886, a new bill, based on a plan put for- ward some years previously by Henry C. Lea, and now supported by the Typographical Unions and other labor organizations. The Hawley bill was on a sim- INTERNATIONAL IN AMERICA 359 pie basis of reciprocity; the Chace bill required regis- try within fifteen days and deposit of the best Ameri- can edition within six months from publication abroad, at a fee of $1, to be used in printing a list of copyright books for customs use, the prohibition of importa- tions and the voiding of copyright when the Ameri- can manufacturer abandons publication. The Ameri- can Copyright League, of which James Russell Lowell was president and Edmund Clarence Stedman vice- president, favored the Hawley bill, which was practi- cally a modification of the Dorsheimer bill, and it was introduced into the House by John Randolph Tucker of Virginia, January 6, 1886. Hearings were held for four days by the Senate Congres- Committee on Patents on January 28, 29, February ^ional hear- 12, and March 11, 1886, at which Mr. Lowell, Mr. ^s^' ^^86 Stedman, " Mark Twain" and others appeared on be- half of international copyright. A memorial signed by 144 American authors, was presented in the follow- ing terms: "The undersigned American citizens who earn their living in whole or in part by their pen, and who are put at disadvantage in their own country by the publication of foreign books without payment to the author, so that American books are undersold in the American market, to the detriment of American literature, urge the passage by Congress of an Inter- national Copyright Law, which will protect the rights of authors, and will enable American writers to ask from foreign nations the justice we shall then no lon- ger deny on our own part." The memorial was pre- sented to Congress in fac-simile of the signatures of the authors and was reproduced in that form in the Bowker-Solberg volume on copyright of 1886. It was at this time that Mr. Lowell wrote his fa- Mr. Lowell's mous quatrain on "International copyright," which epigram presented effectively the fundamental argument: 36o COPYRIGHT President Cleveland's second message, 1886 Campaign of 1887 " In vain we call old notions fudge, ; And bend our conscience to our dealing ; Tiie Ten Commandments will not budge, And stealing will continue stealing." On May 21, 1886, the Committee on Patents pre- sented a report to the Senate, favoring the Chace bill, but no action resulted. In President Cleveland's annual message Decem- ber 6, 1886, at the opening of the second session, he called the attention of Congress to the fact that "the drift of sentiment in civilized communities toward full recognition of the rights of property in the crea- tion of tl^e human intellect has brought about the adoption by many important nations of an Interna- tional Copyright Convention, which was signed at Berne iSth of September, 1885. . . . I trust the subject will receive at your hands the attention it deserves, and that the just claims of authors, so urgently pressed, will be duly heeded." But the Congress ad- journed without heeding them. Senator Chace reintroduced his bill into the Fif- tieth Congress, December 12, 1887. In the same month there was organized the American Publishers' Copyright League, with William H. Appletonas presi- dent and George Haven Putnam as secretary, and from that time forward the authors' and publishers' leagues acted in close cooperation. Copyright asso- ciations were formed in Boston, Chicago and else- where, to influence Congress and the public; Henry van Dyke, especially by his address on "The national sin of piracy," and other clergymen helped to empha- size the moral issue, and authors' readings held in New York, Washington and elsewhere brought the ques- tion widely to public notice and helped to raise funds for the campaign. During this period, R. U. Johnson, associate editor of the Century magazine, who had INTERNATIONAL IN AMERICA 36I been treasurer of the Authors' League, became its secretary, and throughout the campaigns ending in 1891 and 1909, had the working oar. The Typo- graf)hical Unions, represented'by John Louis Kennedy and James Welsh, gave support to the bill conditioned on the acceptance of the type-setting clause, and the opposition to it came chiefly from Gardiner G. Hub- bard and certain legal representatives of unnamed clients. The Chace bill, modified to require printing from Senate pas- type set or plates made within the United States and ^^® °^ to prohibit the importation of foreign-made editions, jgss ' passed the Senate, Senators Chace, Hawley, Hoar and O. H. Piatt of Connecticut being foremost in its support, by voteof 35 to 10, May 9, 1888. It had been introduced into the House by W. C. P. Breckinridge of Kentucky, March 19, and favorably reported by theJudiciaryCommittee, April 21,1888. A bill which Brycebill, had been introduced by Lloyd S. Bryce of New York, "^888 January 16, and referred to the Committee on Pat- ents, was favorably reported by that Committee with amendment September 13, 1888. But the Mills tariff bill and other circumstances blocked the way, and the Fiftieth Congress adjourned without action by the House. President Harrison, in his first annual message, De- President cember 3, 1889, to the Fifty-firist Congress, said; "The Harrison's subject of an internationa,l copyright has been fre- ^g^g^^*' quently commended to the attention of Congress by my predecessors. The enactment of such a law would be eminently wise and just." Senator Chace having resigned his seat, Senator O. H. Piatt became chair- man of the Committee on Patents and the chief advocate of the Chace bill, which he reintroduced December 4, 1889. In the House it was again intro- duced by Mr, Breckinridge on January 6, 1890, and 362 COPYRIGHT Simonds bill, 1890 Simonds re- port, 1890 referred to the Judiciary Committee, which made a favorable report, prepared by G. E. Adams of Illinois February 15, 1890. It was also introduced on the same day by Benjamin Butterworth of Ohio, as a Re- publican, and referred to the Committee on Patents, of which he was chairman. A third bill was also intro- duced on January 6, by W. E. Simonds of Connecti- cut, amending the patent and trade-mark acts with an incidental reference to copyright. Mr. Simonds presented a favorable report from the Committee on Patents February 18, but no action was taken on this report. The main bill was, however, reported from the Judiciary Committee by Mr. Adams, and on motion of William McKinley of Ohio, was made the special order for May 2, when it was debated, with amendments introduced by Mr. Adams and defeated on the third reading by a vote of 99 to 125. The bill was reintroduced, however, by Mr. Simonds with the inclusion of a reciprocity clause. May 16, 1890, and on June 10 the Committee on Patents through Mr. Simonds presented a strong report with a substitute bill, essentially the same. The Simonds report set forth that aside from "practical reasons " for the bill, "it is a sufficient reason that an author has a natural exclusive right to the thing having a value in ex- change which he produced by the labor of his brain and hand. No one denies and everyone admits that all men have certain natural rights which exist inde- pendently of all written statutes." And in respect to international protection, the report said "the United States of America must give in its adhesion to inter- national copyright or stand as the literary Ishmael of the civilized world." The report is printed in full and a detailed account of the campaign for this bill is given in G. H. Putnam's "The question of copy- right." On December 3, 1890, the bill was again INTERNATIONAL IN AMERICA 363 voted upon by the House and received a vote of 139 to 95 on its final passage. In the Senate there was a notable debate lasting Senate de- six days, February 9, 12-14, 17-18, 1891, in which bate, 1891 Senators Sherman and Carlisle championed an amend- ment permitting the importation of authorized for- eign editions which was opposed by the Typographi- cal Unions as violating the manufacturing clause, and by authors and publishers as a restriction on authors' rights of control. Senator Frye on Febru- ary 9, 1 89 1, advocated an amendment extending the manufacturing clause beyond books to include maps, charts, dramatic or musical compositions, engravings, cuts, prints, photographs, chromos and lithographs. With these and other amendments, the bill passed the Senate 36 to 14, February 18, 1891. On Febru- ary 28, 1891, the House voted 128 to 64 non-concur- rence in the Senate amendments, and a Conference Committee was appointed. This first Conference Committee, reporting on Passage of March 2, 1891, disagreed on the Sherman amend- act of March ment, and accepted the other Senate amendments ; '*• ^ ^^ the report was accepted by the House, 139 to 90, on March 2, 1891. The Senate, on March 3, refused by a vote of 33 to 28 to recede from the Sherman amend- ment, and a second Conference Committee was ap- pointed. This second Conference Committee modi- fied the Sherman amendment, and after an all-night session the copyright bill was passed, 127 to ^T, by the House, March 3, and was also passed, 27 to 18, by the Senate at half past two in themorning, March 4, 1891. The bill as passed was in the form of amendments to the Revised Statutes, omitting the limitation to citizens or residents of the United States, confining copyright, in the case of a book, photograph, chromo or lithograph, to works of which the deposit copies 364 COPYRIGHT Approval by President Harrison Review of the publish- ing situation should be "printed from type set within the limits of the United States, or from plates made therefrom, or from negatives or drawings on stone, made within the Hmits of the United States or from transfers made therefrom," and extending copyright to citizens of a foreign country only when such country protects American citizens "on substantially the same basis as its own citizens," or is a party to international arrangements, as determined by proclamation of the President. The signature of President Harrison was promptly affixed before the close of the legislative day, and the United States at last, though in a restricted form, ac- cepted international copyright after an exciting and dramatic contest, which began more than half a cen- tury before. The bill became effective July i, 1891. There had been a continuous growth in the United States, though displayed somewhat intermittently, of an active sentiment in favor of international copy- right. For some years the question was less insistent, from the practical point of view, because of what was called "the courtesy of the trade," by which a pub- lisher who was the first to reprint an English work was not disturbed by rival editions of that and of suc- ceeding works by the same author. Under this cus- tom, the leading American publishers voluntarily made payments to foreign authors, in many cases the same ten per cent paid to American authors, and reaching in one case of "outright" purchase of "ad- vance sheets" $5000, though there was no protection of law for the purchase. American and English works then competed on much the same terms. In 1876 the cheap " quarto libraries " were started, reprinting an entire English novel, though on poor paper and often in dangerously poor type, for 10, 15, or 20 cents. They presently obtained the advantage, by regular INTERNATIONAL IN AMERICA 365 issue (one "library" at one time issuing a book daily, others weekly), of the low postal rates for periodicals, of two cents a pound, and thus obtained a further ad- vantage over books by American authors. These quartos gradually gave way to the "pocket edition," in more convenient shape, but not always in better print, at 20 or 25 cents. The sales of corresponding American books had meanwhile definitely fallen. The history of the movements for international Lack of copyright in America shows that there had been no unified continuous and well-defined policy on the part of the '° ^ government authorities, or of publishers, or of au- thors. While authors almost unanimously, and pub- lishers generally, favored international copyright, the division lines as to method were not between authors and publishers, but between some authors and other authors, and between some publishers and other publishers. There were those, in both classes, who objected to any bill which did not acknowledge to the full the inherent rights of authors, by extending the provisions of domestic copyright to any author of any country, without regard to other circum- stances. There were others, at the other extreme, who opposed international copyright unless it was re- stricted to books manufactured in this country, issued simultaneously with their publication abroad, and of which the importation of other than the American copies was absolutely prohibited. The act of 1891 Compromise was finally passed with the assent of the advocates of 1891 of authors' rights who were willing to waive the ab- stract principle in favor of any moderate measure which should be at least a first step of recognition, and which might justify by its results, even to the opponents of international copyright, further steps of future progress. While the act of 1891 was unsatisfactory to the 366 COPYRIGHT Need of general re- Tision Ad interim copyright act, 1905 friends of copyright, who desired rather that the United States might grant unrestricted international copyright and become a signatory power in the con- vention of Berne, it was thought fair and right not to attempt broader legislation for some years. Copy- right legislation had become, however, confused and uncertain in the multiplicity of statutes, and the need of revision was emphasized in annual and special re- ports by Thorvald Solberg, an expert in copyright and skilled bibliographer, who had been appointed Register of Copyrights on the creation of that office in 1897 with the approval of the Librarian of Con- gress, Herbert Putnam, who had been appointed in 1899. In 1903 the Register of Copyrights presented a special report on copyright legislation which was made part of the report of the Librarian of Congress for 1903,. and accompanied by a list of all copyright statutes by the original states and by the United States, the text of the revised statutes with notations of later provisions and a list of foreign copyright laws in force, which three documents were also published as separate pamphlets. In 1905, March 3, an act was passed granting ad interim protection for one year to works in a foreign language published in a foreign country, pending manufacture in America within one year of the origi- nal work or a translation thereof. This protection was conditioned on the deposit within thirty days from publication in a foreign country of a copy of the foreign edition bearing copyright notice and a reservation in the following form: "Published , 19 . Privilege of copyright in the United States re- served under the Act approved March 3, 1905, by ," — which was also to be printed on all copies of the foreign work sold or distributed in the United States. INTERNATIONAL IN AMERICA 367 On January 27, 1905, Senator Kittredge announced Copyright (in Senate Report 3380) that the Committee on conferences, Patents purposed to "attempt a codification of the ^"os-o copyright laws at the next session of the Congress" and in a letter to the Librarian of Congress suggested that he call a conference of the several classes inter- ested in such codification. Accordingly on April 10, the Librarian of Congress announced such a confer- ence, of which sessions were held at the City Club in New York, May 31 to June 2, and November i to 4, 1905, and in the Library of Congress, Washington, March 13 to 16, 1906. At these conferences, organ- izations representing authors, dramatic and musical as well as literary, artists, publishers, printers, litho- graphers, librarians, the legal profession and the public, participated through delegates, and discussed first a basic memorandum presented by the Ameri- can (Authors) Copyright League and thereafter suc- cessive drafts of a copyright measure prepared by the Register of Copyrights. As a result of these discus- sions, presided over by Librarian Putnam, the final draft was prepared under the immediate direction of the Librarian of Congress, which became the basis of the bill "to amend and consolidate the acts respecting copyright" introduced into the Senate by Senator Kittredge (Senate bill 6380) and into the House by Chairman Frank D. Currier (H. R. bill 19853)- May 31, 1906. In connection with these conferences, a number of "Copyright valuable documents were prepared by Register Sol- in Congress, berg and published through the Copyright Office, ' 9-1904 among them a chronological record of " Copyright in Congress, 1789-1904," with bibliography, sum- marizing all Congressional proceedings in relation to copyright through the second session of the Fifty- eighth Congress. 368 COPYRIGHT President Roosevelt's message, 1905 Meantime President JRoosevelt, in his annual mes- sage of December 5, 1905, to the Fifty-ninth Congress, had made strong recommendations in favor of copy- right reform: "Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the pubUc; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public. Attempts to improve them by amendment have been frequent, no less than twelve acts for the purpose having been passed since the Revised Statutes. To perfect them by fur- ther amendmient seems impracticable. A complete revision of them is essential. Such a revision, to meet modern conditions, has been found necessary in Ger- many, Austria, Sweden and other foreign countries, and bills embodying it, are pending in England and the Australian colonies. It has been urged here, and proposals for a commission to undertake it have, from time to time, been pressed upon the Congress. The inconveniences of the present conditions being so great, an attempt to frame appropriate legislation has been made by the Copyright Office, which has called conferences of the various interests especially and practically concerned with the operation of the copyright laws. It has secured from them suggestions as to the changes necessary ; it has added from its own experience and investigations, and it has drafted a bill which embodies such of these changes and addi- tions as, after full discussion and expert criticism, appeared to be sound and safe. In form this bill would replace the existing insufficient and inconsistent laws INTERNATIONAL IN AMERICA 369 by one general copyright statute. It will be presented to the Congress at the coming session. It deserves prompt consideration." It was arranged that the two Committees on Pa- congres- tents of the Senate and House should hold joint pionalhear- sessions for public hearings on the copyright bill, "'^^' ^9°""°^ and these hearings were held in the Senate reading room in the Library of Congress, the first June 6 to 9, 1906, the second December 7 to II, 1906, the third March 26 to 28, 1908, of each of which full sten- ographic reports were printed for the Committees. At the first hearing the discussions were largely on the general principles of copyright and their special application to the right of musical composers to control mechanical reproduction of their works. Amendments proposed at this hearing were printed by the Copyright Office in two parts, and a third .or supplementary part gave the comment of the Bar Associations' Committees. Register Solberg also printed as preliminary to the second hearing the copyright bill compared with copyright statutes then in force, and earlier United States enactments. In 1907, at the second session of the Fifty-ninth Kittredge- Congress, the copyright measure was introduced by Currier re- Senator Kittredge January 29, 1907 (Senate bill 8190), ^'"*®' ''"^ accompanied later by the majority report, February 5, 1907 (Senate report 6187), and a minority report, February 7, 1907 (Senate report 6187 ; part 2) ; and by Chairman Currier January 29, 1907 (H. R. bill 25133), accompanied later by the majority report, January 30, 1907 (H. R. report 7083), and by a minority report, March 2, 1907 (H. R. report 7083, part 2). No action was taken at this session. At the first session of the Sixtieth Congress, Sena- tor Smoot, who had become Chairman of the Patents Committee on the retirement from it of Senator Kit- 370 COPYRIGHT Smoot- tredge, introduced a majority bill December i6, 1907 ^y^®'* (Senate bill 2499), and Senator Kittredge a minority Barchfefd' bill December 18, 1907 (Senate bill 2900) ; and in the bills, igo7-o8 House, Chairman Currier introduced the majority bill December 2, 1907 (H. R. bill 243), and A. J. Barch- feld the minority laill January 6, 1908 (H. R. bill 1 1 794). The Smoot-Currier bills, practically identi- cal, were less favorable to authors, particularly in re- spect to mechanical reproductions of music, than the Kittredge-Barchfeld bills; and in a pamphlet "The copyright bills in comparison and compromise," pre- pared by R. R. Bowker in behalf of the American (Authors) Copyright League in March, 1908, the fea- tures of the several measures were compared and the views of the Copyright League set forth in a com- bined measure, with annotations. The "canned music " question, indeed, absorbed most of the time at the third hearing, in the stenographic report of which a combined index to the several hearings was printed. Washburn, After the hearings, other bills were introduced into Suizer, Mc- the first session of the Sixtieth Congress by C. G. bis?' Washburn May 4, 1908 (H. R. bill 21592), more fully representing authors' views; by Wm. Suizer May 12, 1908 (H. R. bills 21984, 22071), embodying views of dramatic authors; by S. W. McCall May 12, 1908 (H. R. bill 22098), embodying an amendment to the manufacturing clause as phrased by the American (Authors) Copyright League, excepting from the manufacturing provision "the original text of a for- eign work in a language other than English," and by Chairman Currier May 12, 1968 (H. R. bill 22183). But again no action was taken at this session. At the short (second) session of the Sixtieth Con- gress the copyright bills were reintroduced in the House by Mr. Barchfeld December 19, 1908 (H. R. bill 24782), by Mr. Suizer January 5, 1909 (H. R. bill INTERNATIONAL IN AMERICA 371 25162), by Mr. Washburn January 15, 1909 (H. R. Fourth Con- bill 26282). On January 20, 1909, a fourth public gressional hearing, specifically on "common law rights as ap- ^""^^^^909 plied to copyright," was given by the Copyright Sub- committee 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., Chair- man of the Copyright Committee of the American Bar Association, giving a careful analysis 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 Februeiry 15, 1909 (H. R. bill 28192), and in the Senate by Senator Smoot February 22, 1909 (Senate bill 9440). The Currier bill was referred to the Committee of Passage of the Whole February 22, when a report (H. R. report *** "' ^axcb 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 passed by the House. Senator Smoot had reported to the Senate March I, 1909, with a report from the Committee (Senate report 1108), and on March 3 the bill as passed by the House was brought before the Senate, briefly discussed, and passed. The exact votes were not recorded. It had scarcely been hoped at the beginning of Approval by 1909 by the friends of copyright that the act could President be passed 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 mem- 372 COPYRIGHT ber 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 i, 1909, is printed with an in- dex and with the regulations adopted by the U. S. Supreme Court, as Copyright Office Bulletin 14. Code of 1909 The code of 1909 made the manufacturing clause more drastic, though freeing photographs from its provisions, by requiring in the case of books, peri- odicals, 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 internationati 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 re- taliation and the rupture of copyright relations by Germany and other countries, and in extending protection to mechanical music reproductions on a Hopes of reciprocal basis. The hopes of the friends of copy- ^^®^^ right will not, however, be fully realized until the manufacturing clause, with the affidavit provision, is repealed, and the United States enabled by Con- gress to join the family of civilized nations as a signatory power in the Berlin convention. progress XX COPYRIGHT THROUGHOUT THE BRITISH EMPIRE Copyright in America has been so much modeled on English and English statutes, decisions and precedents, that the American 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 citizenship; 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. A book first published in the United Kingdom First publi- (England, Scotland, Wales, and Ireland) has been cattonand 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 pub- lished 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 entitled 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 (over- ruling Boosey v. Jefferys), that a person not a Brit- ish subject or resident was not entitled to copyright 374 COPYRIGHT Variations in copyright terms The new British code because qf first publication in England, but the stat- ute 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 ex- plicitly that first publication was the single necessity, and that copyright was not strengthened by resi- dence; 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 Mon- treal 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. 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 infringe- ment previous to registration was punishable. De- posit of one copy in the British Museum has been re- quired 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. The Copyright Act, 191 1, as amended by the Lords, which became law (i & 2 Geo. v. c. 46) on Crown approval December 16, 191 1, provides a codi- fication for the British Empire as comprehensive as BRITISH EMPIRE 375 the American code. The act covers as Part I, Im- perial 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 there- of, either in full or with modifications relating ex- clusively to procedure and remedies or necessary to adapt the act to the circumstances of the domin- ion, 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 do- main. 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 with- draw 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. Copyright under this code covers "every original Scope and 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 376 COPYRIGHT of the work " a British subject or a resident domi- ciled within such included parts [or under protection through the international copyright provisions]. Publication "A work shall be deemed to be published simul- taneously in two places if the time between the pub- lication 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 perform- ance, exhibition or delivery. Definition of Copyright is defined to mean " the sole right to pro- copynght duce 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. Infringement is comprehensively and sweepingly Infringement defined to cover any copying or colorable Imitation and excep- of any copyright work or the doing by an unauthor- tions thereto j^^^ ^^^^.^^ ^f "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 (i) 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 publishing of paintings, drawings, engravings, or photographs of 0. work of sculpture or artistic craftsmanship, if per- manently 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 BRITISH EMPIRE 377 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 re- port 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. The copyright term is for the life of the author Term 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 mechan- ical music reproductions, are protected for fifty years; but no specific term seems to be indicated for anony- mous or pseudonymous works as such. Works of joint authorship 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 pro- vided 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. The author of a work is the first owner of the copy- Ownership right, 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 assignment in writing assign his rights wholly or partially, and either generally or as limited to any part of His Majesty's dominions, or 378 COPYRIGHT Deposit copies Importation Remedies for the whole term of copyright or any part thereof, or license accordingly. But no assignment otherwise than by will shall be operative beyond twenty-five years from the death of the author, when the copy- right reverts to his natural heirs, following Spanish precedent. Registration provisions are altogether omitted from the new measure. Deposit is required at the British Museum within one month after publication, "of every book pub- lished 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 classes 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. Importation of " copies made out of the United Kingdom . . . which if made within the United King- dom would infringe copyright," is prohibited, on notification in writing to the Commissioners of Cus- toms (the Isle of Man being specifically excepted from this provision), and similar prohibition is au- thorized as to British possessions. The use in the sec- tion 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 dis- cussed in the chapter on importation. 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 ownership in the prosecution of infringement. An infringer may be relieved from damages (but not from injunction) on proving innocence; architectural infringements may BRITISH EMPIRE 379 not be enjoined after commencement of the struc- ture, but are punishable by damages. On summary conviction any person who knowingly for sale or hire or for trade makes, sells or lets, distributes, ex- hibits, or imports infringing copies, shall be liable to a fine not exceeding forty shillings 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 infring- ing performance. The summary remedies in the musical copyright acts of 1902 and 1906 remain unrepealed. The provisions of the code are extended to cover General existing copyrights. Common law rights are specifi- relations cally abrogated by provision confining the protec- tion of an unpublished as well as a published work to statutory provisions. The measure repeals all existing enactments ex- Acts re- cept sections seven and eight (modified) of the fine P^^led 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, provid- ing summary remedies for piracy of musical works; and the provisions regarding copyrights of the cus- toms and revenue acts are continued with modifica- tions 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 I, 1912, unless earlier made effective by Order in Council. It may be noted that the new British measure had Changes been much modified, — especially in the Committee fromorigi- stage, where efforts to reconcile conflicting interests "^ *"'* 38o COPYRIGHT 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 pro- prietor 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 pass from an artist when he sells his ori- ginal work except by agreement in writing, but subse- quent 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 classes of works, and though optional, it was practically necessitated by the in- genious provision that in the absence of such regis-' tration 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 owner- ship and term were introduced in the Committee stage. The word "infringing" was substituted for "piratical" in Parliamentary debate to conciliate a supersensitive member. The compromises and mod- ifications indicated brought the measure before Parliament as an "agreed upon" bill. Isle of Man The Isle of Man applies the copyright law of the United Kingdom, and has a supplementary law of 1907, applying British legislation on engravings and BRITISH EMPIRE 381 prints, sculpture, paintings, etc., and musical compo- sitions, quite up to date, embodying in the latter sec- tion the latest provisions as to summary proceedings in the protection of music — this being enacted by "the Deemsters and Keys in Tynwald assembled," as the tiny Manx parliament is quaintly called. The Channel Channel Islands of Jersey and Guernsey also apply Islands British copyright law by ordinances or local legisla- tion in their respective domains. Great Britain was one of the original parties to the Intema- Berne convention and accepted the additional act, *!°°^ '■^'*" but not the interpretative declaration of Paris, and the passage of the new measure will permit adhesion to the Berlin convention. She has a special treaty with Austria-Hungary (1893), sometimes cited as the treaty of Vienna of 1893, and has been in reciprocal relation with the United States as a "proclaimed" country since July i, 1891. The British dominions outside of the United King- Colonial dom and Ireland are, in general, under the like provi- relations sions of Imperial copyright law, including the law of 1842 and earlier unrepealed or subsequent acts, the colonial copyright act of 1847 and the international copyright act of 1886 being especially important. They are also generally included under British inter- national relations embracing the Berne-Paris provi- sions of the International Copyright Union and the re- ciprocal relations with the United States, but with the exception that in the Austria-Hungary treaty, Can- ada, New South Wales and Tasmania (both now part of the Australian Commonwealth), and Cape Colony (now part of the Union of South Africa) are not par- ties, because these colonies did not exercise the right of ratification specifically reserved to individual colonies. The application of the Berne convention to the Judicial con- British possessions was upheld in an important fin^ation 382 COPYRIGHT Canadian decision, when in 1906 Justice Fortin, in Mary v. Hubert, in the Quebec Court of King's Bench, held that the British international copyright act in relation with the Berne convention protected a French work from Canadian reprint, though the author had not complied with specific Canadian requirements, — a most significant decision in defense of interna- tional copyright. Local Underthecolonialcopyrightactof 1847, which de- legislation clared local legislation or decrees repugnant to the Imperial law to be null and void, local legislation con- sonant with Imperial acts was permitted, subject to approval by the Crown through Orders in Council, in which case prohibition of importation of foreign re- prints might be suspended by Order in Council with regard to the particular colony. Under this act, local legislation with special provisions existed in British India and other colonies, as well as in the "self-gov- erning dominions," which last now include Canada and Newfoundland, Australia and New Zealand, and South Africa, and which have somewhat greater pow- ers of local legislation. Under these local provisions, the Imperial law still prevails, local legislation being concurrent but not necessarily co-terminous with it, as is particularly noticeable in Canada, where there has been more or less conflict between the Imperial and Dominion authorities. Local protection may thus be extended, for instance, to works not first pub- lished within the British possessions, or in a unionist country, but copyright cannot be denied to works thus first published ; and the Crown disapproves or dis- allows laws or provisions construed by the Imperial authorities to be repugnant to Imperial law. More than a score of colonies have adopted local laws or ordinances, some of which have been disallowed by the Crown. The status of copyright in the several colo- BRITISH EMPIRE 383 nies is thus indefinite and confusing, even to the best- informed EngHsh jurists, and can seldom be stated with certainty. Under the new British code, the "self-governing dominions" will have the right to accept the Imperial code, either completely or with adaptation to local judicial methods, or to legislate independently. In respect to the colonies now constituting the Do- Canadian minion of Canada, before British copyright protec- copyright tion had been definitely extended to works first pub- '^ *"^ lished outside the United Kingdom, Lower Canada in 1832, Canada (upper) in 1841 and Nova Scotia in 1847 had passed copyright statutes to protect authors of books first published in the respective provinces. On the passage of the Imperial act of 1847, authorizing the suspension of that portion of the act of 1842 which prohibited the importation of foreign reprints of Brit- ish copyright works, as to any colony in which pro- vision should be made by local legislation for protect- ing the rights of British authors. Orders in Council were passed for Nova Scotia and New Brunswick in 1848 and for Canada in 1850, suspending such pro- hibition, following satisfactory protection accorded by local acts in those years. These local acts provided for the collection of an impost on foreign reprints of works by British authors in favor of the author or copyright owner. In 1867 the British North America act (30 & 31 Dominion of Victoria, c. 3) was passed, providing for the union of Canada: Canada and the other North American provinces (ex- ^" ^ ""^ ^ cept Newfoundland) under the title of the Dominion of Canada, and section 91 of this act specified copy- right among the subjects which were to be within the legislative authority of the Parliament of Canada. At the first session of the first Dominion Parliament in 1868, a general copyright act was accordingly 384 COPYRIGHT passed, which was followed in the same year by an act continuing the customs duty of 123^ per cent on, foreign reprints of British copyright works, and an Imperial Order in Council was passed July 7, 1868, continuing Canada within the provisions of the foreign reprints act of 1847. The returns to British authors from this duty proved so small — -only £1084 in ten years — that there was much dissatisfaction, and this impost was finally discontinued in 1895, whereupon the suspension under the Imperial act of 1847 of the prohibition of importation ceased to be in force in Canada and foreign reprints of British copy- right works were again under the Imperial law pro- hibited. Acts of 1875 In 1872 a new Canadian copyright act was passed, but it was disallowed by the Imperial authorities, whereupon, in 1875, the Parliament of Canada passed a new act, carefully drawn to avoid conflict with Im- perial legislation. To remove any doubts as to its validity, the " Canada copyright act" of 1875 was passed by the British Parliament to authorize the royal assent. This Imperial act forbiade the importa- tion into the United Kingdom of colonial reprints, though authorized for the Canadian market by Brit- ish authors (and therefore not piracies), of any work which might be copyrighted in Canada, and in which copyright subsisted in the United Kingdom. The Canadian act of 1875 then received the approval of the Crown, and as replaced and substantially re-en- acted by the Revised Statutes of Canada, 1886 (c. 62), — which also included (as c. 37) the amendatory act of 1886, prohibiting the importation of "reprints of Canadian copyright works and reprints of British copyrighted works which have been also copyrighted in Canada," — is still in force, being now Revised Stat- utes, 1906, c. 70, pt. I, as the fundamental Canadian BRITISH EMPIRE 385 copyright law, subject to amendments since passed and approved. The Imperial and Canadian laws of 1875, taken together, make it possible to issue in Can- ada cheaper reprints of British copyright works, by arrangement with the author or copyright owner, without interfering with the more costly English edi- tions. It should here be noted that the Canadian act of License acts 1889, as amended by the Canadian act of 1895, con- «iisallowed stituting Part II of chapter 70 of the Revised Statutes, 1906, has never been approved and brought into force by proclamation of the Governor-General. The act of 1889, following the Imperial international copy- right act of 1886, extended Canadian copyright on condition of registration with the Minister of Agri- culture, and printing and publication or production in Canada within one month after publication or pro- duction elsewhere, and provided that the Minister of Agriculture might grant licenses, not exclusive, for the production of works not thus protected on an un- dertaking to pay to the author ten per cent royalty on the retail price, in which case importation of for- eign-made (but not British) editions might be pro- hibited during the copyright period. The act of 1895 extended this license system to works which the copy- right proprietor failed to keep in print in Canada, un- less he should give satisfactory assurance of prompt re-issue. These acts, as noted, never became effect- ive. In 1900 an amendment to the copyright act was The Fisher passed which is sometimes referred to as the Fisher »«*» ^900 act. It provides that if a book, as to which there is subsisting Canadian copyright under the copyright act, has first been published in any part of the Brit- ish dominions other than Canada, and the owner of the copyright has granted a license to reproduce in 386 COPYRIGHT Minor acts Short form of notice Proposed Canadian copyright code, 191 1 Canada an edition of such book designed for sale in Canada only, the Minister of Agriculture may pro- hibit the importation into Canada, except with the , written consent of the licensee, of any copies of such book printed elsewhere, excepting two copies each for the use of public or institution libraries. There is some question as to the compatibility of this act with Imperial law. An act of 1887 had authorized the transfer from the Minister of Agriculture to the Minister of Trade and Commerce of the registration of industrial designs and trade-marks, but this transfer has never taken place. The acts of 1890 and 1891 provided for copy- right suits in the Exchequer Court of Canada in the name of the Attorney-General or at the suit of any person interested. The act of 1895 also contained a provision adding to the two deposit copies required for Canada a third for deposit in the British Museum. Finally an act of 1908 substituted the short form of copyright notice, "Copyright, Canada, 19 , by A. B." This completes the history of Canadian copy- right legislation. The copyright legislation of Canada will presently be replaced by a comprehensive code, utilizing the permission granted by the new Imperial copyright measure to self-governing dominions. The new bill, of which the original text, as submitted to Parlia- ment April 26, 1911, is given in full in the appendix, will establish relations between the Dominion of Canada and the Imperial authority closely similar to those established by the Australian act of 1905, between that Commonwealth and the home govern- ment. It pushes still further the precedent of "pro- tection to home industries" followed by American copyright legislation since 1891, and is a far more drastic measure, evidently in retaliation against the BRITISH EMPIRE 387 United States and with preferential relations toward Great Britain in view. Americans can scarcely criti- cize, however, the logical application in Canada of legislation on this side of the border. Copyright is to "subsist in every original literary, dramatic, musical and artistic work the author of which was at the date of making the work a bona fide resident in Canada," not first published outside Canada (simultaneous publication being defined as within fourteen days) , conditioned on registry before publi- cation, and the manufacture of every copy within Canada. One registration of a periodical is to protect all future issues. Copyright it is proposed to define broadly, as in the new English bill, including the right "if the work is unpublished, to publish the work," thus bringing unpublished works within the statute law and probably excepting them from com- mon law protection ; and protection against mechani- cal music reproduction is also to be included. The term is to be for the life of the author and fifty years thereafter, with the new British proviso as to works of joint authorship, that the term is to be for the life of the author who dies first and fifty years thereafter, or the life of the author who dies last, whichever period is the longer. Assignment of copyright must be in accordance with the acts, and be registered. Importa- tion of copies made out of the British dominions is prohibited. In case of a license for a Canadian edition of a book, copies printed elsewhere may be prohibited importation, except two copies for library use. Copy- right may also be extended to foreign citizens under arrangements made by the governor in Council. British subjects resident elsewhere than in Canada may be brought under the act by Order in Council. The Imperial and Canadian copyright laws, appar- ently a complexity of complexities, are construed with 388 COPYRIGHT Imperial and Canadian copyright for domestic copyright Imperial and local pro- tection relation to each other and thus do not conflict. Each is good pro tanto. The Canadian copyright law per- mits any person domiciled in Canada or in any part of the British possessions, or any citizen of any coun- try which has an international copyright treaty with the United Kingdom, who is the author of a literary, scientific or artistic work, to obtain copyright in Can- ada for twenty-eight years, with a right of renewal for fourteen years to the author, if living, or to his widow or children, if he is dead, conditioned on re-registration within one year after the expiration of the original term, publication of a renewal notice in the Canadian Gazette and fulfillment of the obligations of original copyright. The requirements for obtaining domestic copyright in Canada are that the work shall be printed and published in Canada, shall be registered and three copies thereof deposited at the Department of Agriculture (Copyright Branch) before publica- tion, and that each copy published shall bear the notice as cited above. In the case of paintings, draw- ings and sculpture, the original work may "be pro- tected by deposit of a written description instead of copies. Under the Imperial copyright act of 1886, provid- ing that a book first published in any part of the Brit- ish dominions shall have copyright throughout those dominions, works are protected in Canada under that act. Subjects or citizens of a country which has no in- ternational copyright relations with the United King- dom may obtain copyright in Canada under the Canadian law by showing that they have British copyright in the work and complying with the other Canadian requirements. Copyright obtained under the Canadian copyright law, so far as it relates to books first published in the British dominions, is in addition to and concurrent though not co-terminous BRITISH EMPIRE 389 with Imperial copyright. The Copyright Branch in the Department of Agriculture is in charge of the Registrar of Copyrights, Trade Marks and Designs, a post filled since 1906 by P. E. Ritchie, Esq. Canadian copyright may be obtained in a work although the Imperial copyright may have been lost by reason of first publication having been made outside of the British dominions or treaty relationship, the Cana- dian law providing that literary works may be pro- tected when printed and published in Canada, whether they are so published for the first time or contem- poraneously with or subsequently to publication else- where. Canadian copyright also affords additional protec- Additional tion and relief not granted by Imperial copyright, by '°'^ P™- provisions (i) that the importation into Canada of *" **° foreign reprints of Canadian copyright works is pro- hibited, and (2) that every person who knowingly prints, publishes, sells, or exposes for sale any pirati- cal copy of a copyright work shall forfeit every such copy to the copyright owner and shall pay for every such copy found in his possession, printed, published or exposed for sale by him not more than one dollar and not less than ten cents, one half of which shall belong to the copyright owner. An applicant for Canadian copyright, either the Application proprietor or his authorized agent, whether domi- for copyright ciled in Canada or other British possessions or a citi- zen of a country having an international copyright treaty with Great Britain, should make application to the Minister of Agriculture (Copyright Branch), Ottawa, Canada, for which statutory forms are pro- vided from that office, attested by two witnesses and accompanied by a fee of one dollar for copyright registration, or fifty cents in case of interim or tem- porary copyright, and three copies of the book (full 390 COPYRIGHT bound) , map (mounted) , etc. , as printed and published in Canada, or written description of a work of art. A book must bear the statutory copyright notice, but a work of art the signature of the artist only. An au- thor or his legal representative may obtain interim copyright pending publication or re-publication in Canada or temporary copyright during serial publi- cation, by registering the designation or title of a work. Thus a citizen of the United States may pro- tect his work in Canada through international copy- right by first publication in the British dominions and also through Canadian copyright, with addi- tional protection, by complying with the require- ments of the Canadian law, which are in some re- spects closely parallel with those of the United States. Newfound- In Newfoundland, always a separate colony and i*nd now a self-governing dominion separate from the Do- minion of Canada, an act of 1849 for the protection of British authors was followed by an Order in Coun- cil of the same year extending to that colony the pro- visions of the Imperial act of 1847. It made provi- sion, following the precedent of Canada, for a customs duty on foreign reprints of British copyright works, which provision was re-enacted in the Consolidated Statutes of 1872 as chapter 53 and again in the Con- solidated Statutes of 1892 as chapter 1 1 1, the duty be- ing at twenty per cent. In 1890 a copyright act was passed, which remains the fundamental copyright act of Newfoundland, as included in the Consolidated Statutes of 1892 as chapter no, supplemented by chapter in, as above indicated. These two chapters have been amended only by the act of 1898 placing copyrights, patents and trade marks under the juris- diction of the Colonial Secretary, an officer provided for in the act, and the act of 1899 reducing the copy-. BRITISH EMPIRE 391 right fee of one dollar to twenty-five cents in the case of photographs. Copyright in Newfoundland is on the same general lines as in Canada, following in large part the precedent of the United States, and is for a term of twenty-eight years with renewal for fourteen years — local protection as distinguished from Im- perial protection being given to works printed and published — or in the case of works of art, produced — within Newfoundland, on condition of registration with the Colonial Secretary and deposit with him of two copies of a printed work, bearing statutory copy- right notice, or of the description of a work of art, — which work must bear the signature of the artist, — one of the two copies being for the use of the Legis- lative Library. In the British West Indies, Jamaica has domestic British West legislation of 1887 under the Imperial act of 1886, for indies, etc. , the British term, requiring the deposit at an office notified in the Jamaica Gazette of three copies within one month from publication — one for the British Museum, one for official use, and one for a designated public library. The Governor may declare one copy sufficient where deposit of three copies would inflict injury. Trinidad, under an ordinance of 1888, pro- vides similarly for the deposit of three copies in the officeof a Registrarof copying rights, with optional but not obligatory registration of playright. The minor British islands in the West Indies, the Bahamas, Brit- ish Guiana and British Honduras, seem not to have provided local legislation, but remain exclusively un- der Imperial law. The copyright act, 1905, of the Commonwealth of Australian Australia, assented to December 21, 1905, is a compre- ^°^^ °^ '^os hensive code superseding previous copyright legis- lation by the several states formerly separate colo- nies. New South Wales, Victoria, Queensland, South 392 COPYRIGHT Australia, Western Australia and Tasmania, although it preserves the rights in existing copyrights taken out under the several state acts. International copy- rights under acts of the Parliament of the United Kingdom and state copyrights may be registered un- der this act and then enforced throughout the Com- monwealth. This act covers (Part III) literary, musi- cal and dramatic copyright and separately (Part IV) artistic copyright. Part I, preliminary, deals with de- finitions, and Part II with administration. Part V deals with infringement. Part VI with international and state copyright. Part VII with registration and Part VIII with miscellaneous provisions. " The com- mon law of England " is specifically applied to unpub- lished literary compositions. The Australian code is of course concurrent though not co-terminous with the Imperial law, and must be construed in conso- nance with it. It is admitted that artistic works are not protected in Australia under either Common- wealth or Imperial law unless "made in Australia," and this serious difficulty the Commonwealth author- ities proposed to remedy by an amendatory act which was presented to the Commonwealth legislature in 1906 but was not then passed. To prevent importa- tion of pirated works, written notice of the copyright and its term should be given to the Minister in Aus- tralia unless communicated to hipi by the Commis- sioners of Customs of the United Kingdom, from registry in London, through the lists periodically distributed. Geneial Copyright in a book covers the right, directly or provisions jjy authorization, to copy, abridge, translate, dramat- ize or novelize, and in the case of a musical work " to make any new adaptation, transposition, arrange- ment, or setting of it, or of any part of it in any no- tation." "Copyright shall subsist in every book" BRITISH EMPIRE 393 (including by definition a dramatic or musical work, when printed and published), "whether the author is a British subject or not, which has been printed from type set up in Australia, or plates made there- from, or from plates or negatives made in Australia, in cases where type is not necessarily used, and has . . . been published in Australia before or simultane- ously" (defined as within fourteen days) "with its first publication elsewhere" ; and the copyright term is forty-two years from first publication in Australia or the life of the author or of the last surviving joint author and seven years thereafter, whichever the longer. Performing right and lecturing right subsist separately for a like period from first public perform- ance or delivery in Australia simultaneously with first public performance or delivery elsewhere. But lecturing right ceases if a lecture is published as a book. The author is the first owner of copyright or performing right, except as employed for valuable consideration, and in the latter case may reprint an article from a periodical after one year. Copyright subsists in every artistic work "made in Australia," but the copyright of a portrait or photograph is with the person ordering it. A dramatic work includes a libretto or lyrical work Dramatic set to music or otherwise, " or other scenic or dramatic *""* musical composition " ; a musical work is defined as "any com- ^°*^ bination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced " — which seems to omit mechanical reproductions. Copyright is a distinct and separable property Perfoiming from performing right or the ownership of an '*sW artistic work, and either right may be separately assigned under any conditions or limitations. Where a dramatic or musical work is published as a book, 394 COPYRIGHT notice of reservation of performing right must be printed thereon, in default of which the owner of the performing right cannot obtain damages from an in- fringer, but may obtain them from the owner of the copyright who has neglected after notice to print such reservation. The proprietor, tenant or occupier who permits a place to be used for an infringing per- formance shall be deemed an infringer. The owner of a performing right may himself issue notices in writ- ing forbidding performance, disregard of which in- volves a specified fine. Registration Provision is made for a registrar and deputies, and and Hcense f^j. g^ 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 main- tained prior to such registration. In case, after the death of an author, the owner of the copyright or per- forming right withholds the work from the public, the Governor-General may grant a license for pub- lication or performance. NewZea- ; New Zealand, now a separate self-governing do- **°d minion, 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 passed special acts, covering specific classes, 1877 to 1903, but seemingly no general code. Photographs are pro- tected for five years from the taking. Telegraph dis- patches 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 BRITISH EMPIRE 395 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 Assembly; 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 Zea- land, or through the London commissioners, as in the case of Australia. In the other British islands of Australasia and the Australasia Pacific, Imperial copyright exclusively prevails, as a otherwise Fiji Islands' Ordinance of 1903, the only one passed in any of the smaller islands, was disallowed by the Crown. British India provided a general copyright act in British India 1847, in line with preceding Imperial legislation, and under the press copyright act of 1867, somewhat modified the British Imperial law, especially provid- ing 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 print- ing on each copy of the printer's and publisher's names. Quarterly publication of such titles is pro- vided 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 classes 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 Coun- cil, and one after registration deposited in a desig- nated 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 396 COPYRIGHT the Collectors of Customs at Bombay, Madras and Calcutta as well as through the London customs. South Africa South Africa, the latest of the British self-govern- ing 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 passage of the new British copyright code, by ac- ceptance of that code or by independent legislation. Meantime its copyright relations are those of the for- mer separate colonies, as the Cape Colony, Natal and other English colonies, following in the main Eng- lish precedent, and the Transvaal and other Dutch colonies, following Holland precedent, including a requirement for printing within the country as a pre-requisite for copyright. 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 com- municated to the colonial customs authorities. 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 dis- patch were protected by the act of 1895, for 72 hours. To protect a play, the title, if in manuscript, or a printed copy, must be registered precedent to local action. Probably failure to deposit in these colonies BRITISH EMPIRE 397 does not forfeit copyright, and imperial provisions generally hold good. The Transvaal, under local legislation of 1887, pro- Transvaal vided protection for fifty years from registration, re- ceipt 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 author- ized 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 pro- visions incompatible with that law, pending the enact- ment of a South African general code. Sierra Leone and the neighboring British colonies West coast on the west coast, as Gambia and the Gold Coast, are coloi^es under imperial copyright law, and passed local ordi- nances 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 similiar provisions. The Mediterranean islands of Malta and Cyprus, Mediterra- in addition to imperial copyright, have local ordi- nean islands nances 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 France FRANCE has always been the most liberal of countries in giving copyright protection to foreign as well as native authors publishing within France, and copy- right was perpetual up to the abrogation by the Na- tional Assembly in 1789 of all privileges previously granted. Though two acts regarding dramatic per- formances (spectacles) were passed in 1791, it was not till 1793 that the National Convention passed a general copyright act, which still remains the funda- mental 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 copy- ' right. No formalities are requisite, but to obtain a right of action, deposit of two copies of a book is re- quired, at the Ministry of the Interior at Paris or at the Prefecture or town clerk's office if in the pro- vinces, for which a receipt is given. More than a score of laws modifying the French copyright system have been passed, the latest being that of April 9, 1910, providing that transfer of a work of art does not involve the copyright. France, which had in general extended the protec- tion of domestic copyright to works published in France, whatever the nationality of the author, specifically protected, by the decree of 1852, from OTHER COUNTRIES 399 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 French with other countries, only those with England (since foreign replaced by relations through the International Copy- " " "'^ right 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 con- vention of 1886, adopted the Paris acts of 1896, and after some delay and discussion accepted the re- vised 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 con- ventions. 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 coun- tries, 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 I, 1891; and it has also treaties with the Latin American countries of Argentina (1897), and Paraguay (1900), both under the Monte- video 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), 400 COPYRIGHT and Salvador (1880), and one with Japan (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. Belgium Belgium, under the law of 1886, grants copyright and playright for life and fifty years, including trans- lations and photographs, or for corporate and like works fifty years. No formalities are required except that corporate and posthumous works must be regis- tered 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 Rouma- nia (19 10), as also with Germany (1907) and Spain (1880) — all save Austria and Portugal on the "most favored nation" basis; it has been in reciprocal rela- tions with the United States as a "proclaimed " coun- try since July 1, 1891, and as to mechanical music since June 14, 191 1, and has also treaties with Mexico on the "most favored nation" basis (1895), and under the Montevideo convention with Argentina and Para- guay (1903)- Luxemburg Luxemburg, under its law of 1898, very nearly a copy of the Belgian law, grants copyright and play- right 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 post- humous or official works to be made at the Office of the Government; and notice is required only to re- serve playright or to forbid reprint of newspaper arti- cles. Protection is provided against mechanical mu- sic reproductions. Luxemburg was an acceding party to the Berne convention, accepted the Paris acts and OTHER COUNTRIES 401 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, 191 1. Holland, originally giving copyright in perpetu- Holland ity 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 de- posited with the Department of Justice within a month from publication, and playright must be re- served on a printed work. The general term is for fifty years from the date of the certificate of de- posit and through the life of the author, if he has not assigned 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 191 o, omitting the printing require- ment, has passed the first Chamber, and after it be- 402 COPYRIGHT comes law Holland, under a concurrent vote in 191 1 , is authorized to accede to the Berlin convention. Germany: Copyright throughout the German Empire is now regulated for literary (impliedly including dramatic) and musical works and certain illustrations, by the act of 190 1 , — 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 particu- lars. History These laws superseded entirely the previous acts, dating back to 1870, when the first imperial copyright act was passed 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 passed in 1837 making protection effective for a mini- mum 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 ex- tended to cover Prussian provinces outside the feder- ation. Many of the early copyright systems had not extended protection to an author's heirs, but in 1837 Prussia passed 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. OTHER COUNTRIES 403 Copyright under the imperial legislation of 1901-07 Laws of was granted for life and thirty years, and furthermore ^S"^-"? for posthumous works at least ten years from pub- lication; and for anonymous, pseudonymous and corporate works, thirty years. Copyright in photo- graphs 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 authorship, the term is from the death of the last surviving author. Playright is, inferentially, under like terms and conditions. The author of anony- mous 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 cis authors; in composite works the originator of the work as a whole, or if no such editor is mentioned, then the pub- lisher, is regarded as author; if a literary work is ac- companied by music or by illustrations, the author of each part is regarded as originator of his separate work; in inseparable composite works, a partnership 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 pseu- donymous book, may be made in the register to be kept by the Municipal 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 igosinthe Reichsanzeiger. Translations, adap- tations, etc., are protected as original works. Official documents, public speeches, etc., are not protected, and reproduction of newspaper articles, except those of a scientific, technical or recreative character, is per- mitted, unless reservation is made, on condition of 404 COPYRIGHT acknowledgment and that the meaning shall not be distorted. Extracts are permitted under specified limitations. Poems may be used as set to music un- less distinctively intended for that purpose; and mu- sical compositions, except operas and the like, may be played for charity purposes or by musical societies for members and their families. Art provi- In the case of a work of art, reproduction for per- ^°"® sonal use and gratuitously is permitted, but during an author's life only by photographic means; this per- mission 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 entitled to reproduce it, except on agreement to the contrary. Reproduction and exhibition are permitted of portraits in contemporary history or when accesso- ries, as in a landscape or part of a procession or as- 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 perma- nently in public places are permitted, but these may not be affixed to a work of architecture. 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. Foreign The law protects all works of a subject of the Ger- citizens man 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 OTHER COUNTRIES 405 firm having a place of business or a branch within the Empire. Germany was a party to the Berne convention and German to the Paris acts, and ratified July 12,1910, the Berlin foreign convention. This ratification was made possible by an act of May 22, 1910, modifying domestic copy- right to conform with the provisions of the Berlin con- vention, 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, 19 10, the Emperor promulgated an ordinance providing for the application of the law, and both the Berlin convention and this new law be- came effective September 9, 1910, Germany has treaties outside the Union with Austria-Hungary (1899), has special treaties beyond the provisions of the Union on the "most favored na- tion" basis, made in 1907 with Belgium, France, and Italy, and has been a "proclaimed" country in recip- rocal relations with the United States since January 15, 1892. By proclamation of Decembers, 1910, recip- rocal relations as to mechanical music reproductions were also proclaimed between Germany and the United States. In Austria-Hungary, the dual states of that empire Austria- have separate copyright as well as other legislative Hungary relations. Austrian domestic copyright is based on the law of 1895, as amended by that of 1907, and Hungarian on the law of 1884. Copyright in Austria is dependent on publication within the country and citizenship or reciprocal relations; in Hungary on publication by a Hungarian publisher and two years' residence in the case of foreign authors whose coun- try is not in reciprocal relations. In Austria the gen- eral term is for life and thirty years, in Hungary life and fifty years, or for corporate, anonymous and like 406 COPYRIGHT works, thirty or fifty years respectively, unless the anonymous author discloses his identity. Registra- tion, in Austria at the Ministry of Commerce, and in Hungary at the Ministry of Agriculture, is required only for anonymous and pseudonymous works, and in Hungary in other special cases, as plays. The right of translation must be reserved on the work, for specified languages or in general, and must be exercised within stated periods; notice is also required on photographs, and in Austria on musical works to protect perform- ing right. Posthumous works, if published in the last five years of the thirty or fifty year term, are protected for five years from publication. Photographs are pro- tected only for ten years in Austria and five years in Hungary. Collections of telegraph news, as printed in a newspaper, are protected in Hungary. Austria and Hungary have a treaty with each other (1907), and jointly with Great Britain (1893), Germany (1899), France (1866-1884) and Italy (1890), involv- ing in the case of Hungary registration in Hungary as well as in the country of origin. Austria has also treaties with Belgium (1910), Denmark (1907), Rou- mania (1908), and Sweden (1908), and has been in reciprocal relations with the United States as a "pro- claimed" country since December 9, 1907; Hungary is negotiating reciprocal relations with the United States, but has otherwise no separate treaties. Neither Austria nor Hungary is a unionist country. Switzerland Switzerland, under its federal constitution of 1874 and the law of 1883, provided copyright for life and thirty years or for corporate and like works thirty years, giving protection for the full term to transla- tions if the right to translate is exercised within five years from publication. Photographs were protected for five years only. No formalities are required, though an author has the option of registering his tries OTHER COUNTRIES 407 work, with the exception that registration in the Of- fice of Intellectual Property is required within three months from publication for the protection of posthu- mous and official publications and photographs. No- tice of reservation of playright is required on printed copies. Switzerland was an original party to the Berne convention, accepted the Paris acts and ratified the Berlin convention without reservation in 1910. It has had reciprocal relations with the United States as a "proclaimed" country since July i, 1891, and included copyright in a treaty with Colombia (1908). The Scandinavian countries, Denmark, Norway Scandina- and Sweden, in which last copyright was formerly ^?" '='"*°t perpetual, now grant protection for life and fifty years as the general term, or fifty years for corporate and like works, an anonymous author having the right to the full term on printing his name in a new edition or declaring it by registration. Photographs are pro- tected for five years — in Norway for fifteen years. The right to translate into a Scandinavian language is protected for the full term; into other languages for the full term in Norway, but in Denmark and Sweden only for ten years from the end of the year of publication of the original work, with an addition in Denmark that a translation published within these ten years protects the author for the full term against unauthorized translation into that language. No formalities are requisite, but in Norway the printer is required, though default does not affect copyright, to deposit a copy with the university library in Christiania within a year of publication. Notice is required, however, on photographs, and ex- cept in Sweden, to reserve right of musical perform- ance. Denmark, by two laws of 191 1 , requires deposit and registration of photographs. Sweden makes the exceptions that works of art are protected for life 4o8 COPYRIGHT and ten years and that playright is for life and thirty years, or for anonymous plays, only for five years, unless the author meantime discloses his identity. In Denmark and Norway right of recitation and in Sweden playright must be specifically reserved. Scandina- Denmark's domestic copyright is covered by laws Jiutfonf ^ of 1865, 1902, 1904, 1908 and 191 1, Norway's by those of 1877, 1882, 1893, 1909 and 1910, and Sweden's by the general laws of 1897, codifying those of 1877, etc., respectively for literary, art and photographic works, and amendatory acts of 1904 and 1908. All three are unionist countries. Denmark remains under the Berne-Paris agreement, not having accepted the Ber- lin convention. Norway became party to the Berlin convention by ratification September 4, 1910, with reservations as to architectural works, in which it adheres to article IV of the Berne convention; as to newspaper and review articles, in which it adheres • to article VII of the Berne convention; and as to the retroactive provision, in which it adheres to article XIV of the Berne convention. Sweden re- mains under the Berne convention and the interpre- tative declaration of Paris, not having accepted either the Paris additional act or the Berlin convention. Each Scandinavian country has a special copyright treaty with the other two (1877, 1879, 1881). Den- mark has also a treaty with Austria ( 1 907) and Sweden with Austria (1908). Denmark has had reciprocal relations with the United States as a "proclaimed" country since May 8, 1893, Norway since May 25, 1905, and as to mechanical music since June 14, 191 1, arid Sweden since June i, 1911. A specieil law for Iceland, embodying in general the Danish pro- visions, was passed in 1905, and the Danish law may be taken as covering the other Danish colonies, as the Danish West Indies, in lack of special legislation. OTHER COUNTRIES 409 Russia early gave, in 1828-30, enlightened protec- Russia tion to authors, providing for a term of life and twenty-five years, with an added ten years under spe- cified circumstances, and protecting an author's copy- right from seizure by his creditors ajid from passing from a bankrupt publisher except on fulfillment of the author's contract. Under the civil code of 1887, copy- right was extended to life and fifty years, but play- right was only nominally protected and the protec- tion of translations was negatived by a decision that translations must be word for word. The new law sanctioned March 20, 1911, is a comprehensive and detailed code providing copyright for life and fifty years, except that certain collections are only pro- tected for life and twenty-five years and periodicals for twenty-five years, photographs for ten years and translations on notice of reservation for ten years, the right to translate being exercised within five years from publication. Playright is protected, but on a musical work notice of protection must be printed. A photograph must bear notice of its purpose, date and author's name and domicile. Protection is accorded to all works published in Russia and works published by Russian subjects domiciled elsewhere; and pro- vision is made for treaties on reciprocal conditions. The law treats also of relations between authors and publishers. Russia, though represented at Berlin, has as yet no international relations. Finland, formerly an independent grand duchy, Finland protects copyright under its law of 1880 for a general term of life and fifty years, with exceptions as to pho- tographs, etc., and with provisions as to translation into the Finnish and Scandinavian languages similar to those of Scandinavian countries. Other provisions are similar to those of Russia. It has no exterior copyright relations. 410 COPYRIGHT Spain Spain passed a general copyright code in 1879, which applied not only to the Peninsula, but ultra- mar to Cuba and the other colonies, and became a model for later legislation in several Spanish-Ameri- can countries, under which code detailed regulations were promulgated in 1880. This code is enforced through the penal code of 1870 and the civil code of 1889. Ordinances from 1893 to 1910 deal with the regulations as to details. Spain grants copyright for life and eighty years on condition of registration by deposit of three signed copies with the Register of In- tellectual Property in the Ministry of Agriculture, or in the provincial centres for registration, within one year from pubUcation. In default of registry within the year, any one may publish the work for ten years ; and if after the ten years the author fails to register within the ensuing (twelfth) year, the work falls into the public domain. Protection is given for an indefi- nite term to works issued by the state and, to the ex- tent of their legal existence, those from corporate bodies. A work assigned within the life of the author, remains in the possession of the assignee during the full term unless there are natural heirs (herederos for- zosos — "forced" or inalienable heirs), in which case the right reverts to such heirs twenty-five years after the death of the author, on registry of such right and proof of succession under the regulations accompany- ing the act. This, according to the official Spanish print, is for the remaining fifty-five years — not, as in a French version, for twenty-five years only. A musi- cal work is protected with reference to other instru- ments and to other forms in a provision so broad that it is possibly applicable to mechanical music reproductions. Writings and telegrams inserted in periodicals may be reproduced unless this is expressly forbidden by notice at the title or at the end of the oth5:r countries 411 article — a provision which implies the protection of articles and telegrams in case of such notice of re- servation. Works not republished for twenty years fall into the public domain, except in the case of unprinted dramatic or musical works, — unless the proprietor shows that during such period he has kept copies on sale. The protection of domestic law is extended by the terms of the law to citizens of countries having reciprocal relations, without additional formalities. Spain was one of the original parties to the Berne Spanish convention, accepted the Paris acts and adopted the *°y®^sn T->i- • • 1 • »i • relations Berlm convention without reservation, through rati- fication by the King September 5, 19 10. Spain has treaties with Portugal as well as with Belgium, France and Italy, all four made in 1880 on the "most fa- vored nation" basis; it has relations with the United States under treaties of 1895, 1898 (the peace treaty), and 1902, and as a "proclaimed" country since July 10, 1895; and has treaties also with Colombia (1885), Costa Rica ( 1 893) , Ecuador ( 1 900) , Guatemala ( 1 893) , Mexico (1903) and Salvador (1884), mostly on the "most favored nation" basis, and relations under the Montevideo convention with Argentina and Paraguay (1900). Portugal, under its civil code of 1867 and penal Portugal code of 1886, grants copyright for life and fifty years to its citizens and to foreigners whose countries grant reciprocal relations. The foreign author, to protect a translation of his work, which protection is for ten years only, must provide such translation within three years. Translations of non-copyright works by a na- tive translator are protected for thirty years. Two copies must be deposited before publication at the Public Library, or in the case of dramatic and musical publication in the Royal Conservatory in Lisbon. Portugal as a republic acceded to the Berlin conven- 412 COPYRIGHT tion from March 29, 191 1 . It has additional relations with Italy (1906) and Spain on the "most favored nation" basis (1880); and reciprocal relations with the United States as a "proclaimed" country since July 20, 1893, and with Brazil (1889). Italy Italy grants copyright under its law of 1882, — codifying its original law of 1865 and the dramatic law of 1875, — as promulgated by royal decree Sep- tember 19, 1882, to become effective in 1885, and its civil code of 1889. It assures full copyright for life or forty years, whichever the longer. After forty years from first publication or, if the author live beyond that date, after his death, a second term of forty years begins, in which any person, on duly declaring his intention, may republish a work, on condition of paying five per cent royalty to the copyright proprie- tor. The state may expropriate any work after the death of an author on paying to the proprietor a compensation named by three experts. Gk)vernment and society publications are copyright only for twenty years. An author may reserve rights of translation for ten years. Playright is for eighty years. Three copies of the printed work should be deposited at the prefecture of the province within three months, in default of which, infringement previous to deposit cannot be punished ; and if deposit is not made within ten years, the author is understood to waive his rights. With the deposit copy a declaration of reser- vation of rights should be filed, for publication in a semi-annual list in the official gazette. Notice is re- quired to reserve rights in periodical contributions. A manuscript copy of an unpublished play should be submitted within three months from first perform- ance for visi, which manuscript is then returned. By the law of 1910, as to legal deposit, three copies must be delivered to the Procureur du Roi in the district OTHER COUNTRIES 413 of the printing establishment for transmission to the official libraries in Florence, Rome and the re- spective province ; failure to make such deposit does not affect the copyright, but involves a fine. The laws, both of 1865 and 1882, extended copyright to foreign works, on relations of reciprocity, without treaty arreuigements and without additional formal- ities. Italy was an original party to the Berne conven- Italian tion and accepted the Paris acts, but has yet to ratify foreign the Berlin convention. It has treaties with Austria- Hungary (1890), Montenegro (1900), Portugal (1906), Roumania (1906), San Marino (1897); also special treaties with Spain (1880), France (1884), and Ger- many (1907), all on the "most favored nation" basis. It has had reciprocal relations with the United States' as a "proclaimed" country since October 28, 1892, and has also treaties with Colombia (1892), with Cuba (1903) and Mexico (1890) on the "most favored na- tion" basis, and with Nicaragua (1906) ; and also under the Montevideo convention, relations with Argentina and Paraguay (1900). San Marino, the tiny state enclosed within Italy, San Marino has pledged itself by the copyright provisions in its treaty with Italy (1897) to protect all works pro- tected in Italy, by application of the Italian law. Monaco, under laws of 1889 and 1896, provides Monaco copyright for life and fifty years with the peculiar provision that copyright on anonymous and pseu- donymous works extends fifty years beyond the death of the publisher, who is reputed author. No formali- ties are required except notice of reservation in re- spect to articles in periodicals. Monaco acceded to the Berne convention, in 1889, accepted the Paris acts and ratified the Berlin convention without reser- vation, December 19, 1910. 414 COPYRIGHT Greece Greece originally provided for copyright protection under its penal code of 1833, with a term of fifteen years subject to royal extension. By the law of 1867 the printer of a work was required to deposit with the National Library two copies within ten days of publi- cation, failure involving a fine of at least ten drach- mas, but not forfeiture of copyright; and to this re- quirement was added by the law of 1910 a third copy for the Library of Parliament and a fourth for the local public library, with authority to transmit through the post. A dramatic copyright law of 1909 specifi- cally covers playright, making the term life and forty years and preventing modification of a play by an assignee. Greece has no international relations. Montenegro Montenegro, though it has no specific domestic copyright law, and only gives uncertain protection under its customary law and civil code of 1888, has treaties with France (1902) and Italy (1900). It had acceded to the Berne convention July I, 1893, and ac- cepted the Paris acts, but withdrew from the Inter- national Copyright Union April i, 1900, "from motives of economy." The Balkan states are led in copyright protection by Roumania, possibly owing to the influence of the literary queen " Carmen Sylva," which country, under the press law of 1862 and penal code of 1864, has pro- tected copyright and playright, including probably translation, for life and ten years. Written registra- tion is required at the Ministry of Instruction, and deposit of four copies was also required, though not on penalty of forfeiture of copyright. A later law, of 1904, repeals the deposit requirement. Roumania has copyright treaties with Belgium (1910), France (1907), these on the "most favored nation" basis, Austria (1908) and Italy (1906). Bulgaria and Servia seem to give no protection, except that accorded in Bulgaria Roumania and other Balkan states OTHER COUNTRIES 415 by its penal code of 1896, and have no international relations. Turkey, which gave some protection to authors so T»u:key far back as its penal code of 1857, passed in 1910 a new copyright code providing for books, drama and music a term of life and thirty years, in which last the children, widow or widower, the parents and the grandchildren or their descendants should benefit in equal shares ; and for works of art, including architec- ture, a term of life and eighteen years. Posthumous works are protected from publication for the years above stated. Copyright includes right of translation, representation and adaptation; translations are pro- tected, but the term extends only fifteen years after the death of the translator. The assignment of pub- lishing right does not include playright unless specifi- cally stated. Reprint of periodical articles, unless for- bidden, and extracts from books "in case of urgency or to the end of public utility," may be made on acknow- ledgment of the source. Reprint of works out of print may be licensed by the Ministry of Public Instruction. Registration is requisite with deposit of three copies, in the case of reproduced works, with the Ministry of Public Instruction, at Constantinople, or in its pro- vincial offices on written application and a fee of a quarter of a Turkish pound, for which a certificate is issued. An annual publication of the copyright entries is provided for. The law is not in terms confined to Turkish subjects, but it may by the nature of Turkish legislation apply only within the Turkish Empire, though there seems to be hope that Turkey may ad- here to the Berlin convention. Turkey is otherwise without international relations. Japan, the only oriental power which is a unionist Japan country, adopted a general copyright code in 1899 (March 3, as applied by ordinances of June. 27 and 4i6 COPYRIGHT 28), modifying a law of 1877, and in the same year (July 15) ratified the Berne-Paris agreements and became a member of the International Copyright Union. Amendatory acts were adopted in 19 10, on June 14-15, broadening the scope to include architec- ture and providing as to details of registration. Un- der domestic legislation first publication in Japan is the only requisite for copyright, but registration must be made in the Ministry of the Interior before action for infringement can be brought, and by disclosure of name to obtain the full term for anonymous and pseu- donymous works. Registrations are printed in the official gazette. Protection is for life and thirty years, or thirty years for anonymous, posthumous and cor- porate works. The right of translation is protected for ten years, and translations are protected for the full term ; photographs for ten years only. Titles are pro- tected in copyrighted works, but not general titles. Periodical contributions must be protected by notice. Japan accepted the convention of Berlin with reserva- tions as to the exclusive right of translation, in which it adheres to Article V of the Berne convention as revised at Paris, and as to the public performance of musical works, in which it adheres to Article IX of the Berne convention. Japan has treaties with China (1903) and with the United States (November 10, 1 905 1 "proclaimed" May 17, 1906), which, however, excepts translations, and also special treaties of Aug- ust II, 1908, covering Japanese protectorates in Korea and China. Eorra Korea was formerly without copyright provisions, except as given by the above-named treaty and simi- lar British provisions as to the consular court at Seoul, but since it has become practically a Japanese posses- sion, it has been included by Japanese ordinance of 1908 under Japanese copyright law. OTHER COUNTRIES 417 China promulgated, December 18, 1910, its first China domestic copyright provisions, establishing a term of life and thirty years, on condition of registration by deposit of two copies at the Ministry of the Interior or corresponding provincial office, with a fee of five dollars. The protection does not include the exclu- sive right to translate foreign works into the Chi- nese language, although individual translations may be protected. Photographs, unless included in writ- ings, are protected only for ten years from date of re- gistration. These provisions require approval to be made effective. China has a treaty with Japan (1903) and one of like date (October 8, 1903) with the United States, effective from January 13, 1904, protecting for ten years books, maps, prints, or engravings, "especially prepared for the use and education of the Chinese people" or "translation into Chinese of any book," but Chinese subjects are to have liberty to make "original translations into Chinese, " so that the treaty affords little protection. By treaty with Japan (August 11, 1908) Japan's copyright protec- tion is extended where it has extra-territorial jurisdic- tion, as in Canton and other places in China. By British Orders in Council of 1899, 1907, copyright pro- tection against infringement by a British subject may be afforded by the consular court at Shanghai to foreign as well as British suitors under specified conditions. Siam passed a literary copyright law in 1901 , giving Siam identical rights with those in any other property for life and seven years, or for forty-two years, whichever the longer, on the conditions of printing and publica- tion within the country, registration within a year and deposit of four copies. Siam has no treaty relations, but works printed and first published there possibly would have the benefit of the law. British copyright protection is also extended through British consulates. 4i8 COPYRIGHT Asia otherwise Tunis, etc. Egypt Persia and other native-governed countries seem to have no copyright protection, although Persia was represented at the Berlin conference. Copyright pro- visions in British India, Ceylon and the other Asian colonies is covered in the preceding chapter on the British dominions. The Dutch East Indies have copyright protection under Dutch law, and Indo- China under French law. The Philippine Islands, like the Sandwich Islands (Hawaii), have copyright protection under United States law. Tunis, a protectorate of France but not a French colony, long the only unionist country in Africa, has domestic protection under its law of 1889, following in general that of France, with a term of life and fifty years. It was one of the original parties, as a separate power, to the treaty of Berne, accepted the Paris acts and ratified the Berlin convention with reservation, September 30, 1910, like France, as to works of applied design, in which it adheres to the stipulations of the previous convention ; it has no other foreign relations. Algiers, a French colony, is under French law and international relations. Morocco and other native states seem to be without copyright protection. Egypt, under the protectorate of Great Britain but not a British possession technically, is without domestic legislation, except that its penal code of 1884-89 forbids piracy, and it is not included under British relations. But under a crude sort of custom- ary law and this penal code, the courts enforce rights of foreigners as well as of natives by the protection of their works for an indefinite term. The rights of French citizens in plays and music have been enforced through the French consular court, and in recent years the mixed courts at Cairo and the Court of Appeal have exercised copyright jurisdiction, "under the principles of natural justice and the laws of OTHER COUNTRIES 419 equity." In the leading case of the Soci6t6 des gens de lettres v. Egyptian Gazette, in 1889, the Court of Appeal laid down the principle that "copyright is a veritable right of property founded on labor, " and on this ground has upheld the right of literary, dramatic and musical authors and of artists to prevent repro- duction. Liberia seems to have no domestic copyright law Liberia recorded, and probably protection, national and inter- national, is under customary law without formalities. It was represented as an independent power at the Berne convention and signed the original convention, but never became a party to it by ratification; it, however, adopted the Berlin convention by ratifica- tion and is now a member of the International Copy- right Union. The Congo Free State seems to cover copyright Africa offenses by its extradition treaties with Belgium otherwise, (1898) and France (1899) to the extent of including in the list of offenses fraudulent application to any art object or work of literature or music, of the name of an author, or any distinctive sign adopted by him. Copyright provision in South Africa, Sierra Leone and other British colonies is covered in the preced- ing chapter on the British dominions. In Latin America provision for copyright protec- Latin tion had generally been made by the several states, America for various terms, in some cases in perpetuity, pre- vious to a movement for international relationship which began with the Montevideo convention of 1889, for South American states only, reached a further step in the convention of Mexico City, 1902, was not substantially advanced by the amendatory treaty proposed at Riode Janeiro, 1906, which never became practically operative anywhere, and culmi- nated in the Buenos Aires convention of 1910, which 420 COPYRIGHT was ratified by the United States Senate February i6, 191 1, but has yet to be ratified by the Latin countries. Five South American states are bound together under the Montevideo convention as ratified by Argentina (1894), Bolivia (1903), Paraguay (1889), Peru (1889), and Uruguay (1892). The United States has relations with Mexico (1896), Costa Rica (1899), Cuba (1903), Chile (1896), and by ratification in 1908 of the Mexico convention of 1902, with Costa Rica, Guatemala, Honduras, Nicaragua, Salvador and possibly Dominican Republic, and will come into relations under the Buenos Aires conven- tion of 1910, with any power ratifying that convention. Mexico Mexico, under the guarantees of property in its con- stitution of 1857, and the specific and elaborate copy- right provisions of its civil code of 1 871, as modified by that of 1884, grants copyright in perpetuity and playright for life and thirty years as the general term, with complicated modifications and exceptions. In the case of anonymous and pseudonymous works, rights in perpetuity are to the publisher and his successors, pending disclosure of the author, who must record his name in a sealed envelope. The right of translation is protected in perpetuity except for works of non-resi- dents published abroad, then limited to ten years. Corporate works are protected for twenty-five and official publications for ten years only. Registration is required through application to the Minister of Pub- lic Education and deposit of two copies is obligatory, one in the National Library and one in the Public Archives. A third copy is usually expected for the Library of the Ministry. The right to copyright holds for ten years from publication. Reservation is re- quired of right of translation and of other specified rights, by notice on the printed work. Protection is conditioned on residence, reciprocity or first publica- OTHER COUNTRIES 421 tion within Mexico. Private letters may not be pub- lished without consent of both correspondents or their heirs, except for proof of right or in the pubUc inter- est, or for the progress of science. Mexico does not seem to be a party to any convention, not even that of Mexico City, but has had reciprocal relations with the United States as a "proclaimed" country since February 27, 1896, and has treaties with the Domin- ican Republic (1890) and Ecuador (1888), and with Belgium (1895), France (1886), Italy (1890), and Spain (1903), all on the "most favored nation" basis. To obtain Mexican copyright, it seems necessary to execute a power of attorney, validated by a Mexican consul, to a representative in Mexico City for the registration and deposit at the Ministry. Of the five nations of Central America, Costa Rica, Central under penal and civil codes of 1880 and 1888 and a American copyright law of 1896, grants copyright, including Rig^^' °^ playright, for life and fifty years, with provisions for return to heirs after twenty years and other variations after the Spanish model, on registration and deposit within a year of three copies of a printed work at the office of Public Libraries, on condition of residence or reciprocity. Guatemala, under a decree of 1879, Guatemala grants copyright for literary works in perpetuity on registration and deposit of four copies at the Ministry of Public Education to "inhabitants of the Repub- lic," — with the curious provision that an assignee cannot prevent republication with "essential modifi- cations " by the author. Right of translation must be reserved by notice. A sealed envelope with name of author must accompany an anonymous book. Hon- Honduras duras, under its constitution of 1894, has provisions in its civil and penal codes of 1898 guaranteeing to an author of a literary, scientific or artistic work the general property rights, pending passage of a copy- 422 COPYRIGHT Nicaragua Salvador Interstate and inter- national relations right law and punishing fraud by "minor banish- ment." Nicaragua, under its civil code of 1904, grants copyright in perpetuity on registration and deposit of six copies with the Ministry of Agriculture. Right of translation must be reserved by notice. Salvador, under its constitution of 1886 and law of 1900, grants copyright on works published in Salva- dor for life and twenty-five years, or for corporate works fifty years from publication on deposit of one copy with the Minister of Agriculture before publica- tion, with the exceptional provision that if the heirs renounce their rights or fail to make use of them within a year from the author's death, the work falls into the public domain; the translator of a Latin or Greek work is protected as an author, and the gov- ernment may grant five-year licenses for the reprint with author's permission of "interesting works," presumably those published elsewhere. In 1894-95, and again in 1897-1901, interstate treaties, incidentally covering copyright, were nego- tiated ; but interstate and international relations are now covered by the participation of the five nations, as well as the United States and the Dominican Re- public, in the Mexico convention of 1902 and by the treaty of peace made by these five Central American states at Washington, December 20, 1907. There is some question under the treaty of 1907 whether pro- tection is assured in each state to others than residents, but probably all citizens of the five states are pro- tected throughout all. To secure protection under the convention of 1902, an American citizen should apply for an additional certificate from the U. S. Copyright Office for each country, which after validation by the State Department is sent with one deposit copy for each country to the respective American legations, through which official acknowledgment will be re- OTHER COUNTRIES 423 turned. Costa Rica has had reciprocal relations with the United States as a "proclaimed" country since October 19, 1899, and has treaties with France (1896) and Spain (1893); Guatemala with France (1895) and Spain (1893), the latter on the "most favored nation" basis; Nicaragua with Italy (1906) ; and Sal- vador with France (1880) and Spain (1884). Panama grants copyright under the constitution Panama of 1904, which adopted and made part of Panaman law the Colombian copyright law of 1886, which is summarized in the paragraph on Colombia. The Canal Zone is under United States law through a War Department order of 1907. Cuba, which as a Spanish colony came under the Cuba Spanish act of 1879, has domestic protection under this act as applied by four military ordinances, 1900- 1902, during the United States protectorate, and continued under its insular government. In the third ordinance, of June 13, 1901, it was provided that existing copyrights under the Spanish law of 1879 should be valid during their term, and also that copy- right as well as patents granted by the United States shall have insular protection on deposit of a copy of the certificate. Registration Is made at the Registry In the Department of State within one year of publi- cation, accompanied. If a foreign work, by certificate of copyright in the country of origin, and deposit should be made of three copies for preservation in the National Library, the University and the Public Archives. On these conditions, under the military ordinance of 1900, authors of foreign scientific, artistic and lit- erary works or their agents or representatives enjoy protection in the case of new works. Regulations of 1909 prescribe the forms of application for domestic and for foreign works. To claim Cuban copyright, an American should obtain an attested copy of the 424 COPYRIGHT copyright certificate and transmit this, with a power of attorney in Spanish validated by a Cuban consul, and three deposit copies, to a representative in Ha- vana, who must deposit the certificate with an at- tested Spanish translation and the three copies at the Registry. Copyrights by Spanish subjects pre- vious to the treaty of peace with the United States, ratified in 1899, remain valid by virtue of a specific article in the treaty. Cuba has been in reciprocal relations with the United States as a "proclaimed" country since November 17, 1903, and has a treaty with Italy (1903) on the "most favored nation" basis. It is reputed to have ratified the Pan American conven- tion of 1902, but possibly only the industrial treaty. Haiti Haiti, which gave copyright protection as early as 1835, adopted in 1885 a copyright law with some un- usual features. An author holds exclusive right dur- ing life; the widow through her life; the children for twenty years further, or other heirs, if there are no children surviving, for ten years. Unauthorized re- prints are confiscated on the complaint of the pro- prietor of the copyright; and the author recovers from the reprinter the price of a thousand, or from a bookseller of two hundred copies, reckoned at the re- tail price of the author's edition. Deposit is required of five copies within twelve months from publication at the Department of the Interior. Haiti has the unique distinction in Latin America of being a union- ist country; it was originally a party to the Berne convention, accepted the Paris acts and adopted the Berlin convention without reservation. It has no relations with the United States and no treaties. Dominican The Dominican Republic provides copyright pro- Republic tection under its constitution of 1896, has a treaty with Mexico (1890) on the "most favored nation" basis, and ratified the Pan American convention OTHER COUNTRIES 425 (though possibly only the industrial treaty) of 1902, June 15, 1907. Jamaica and the other British islands and colonies West Indian along the Atlantic and Caribbean seas have copy- Colonies right protection under imperial and to some extent local laws, as already noted ; Porto Rico is under the provisions of United States law and the Danish and Dutch West Indian colonies are under the respective laws of their nations. Brazil, under the constitution of 1891 and the law Brazil of 1898 and regulations of 1901, grants copyright for the general term, inclusive of photographs, of fifty years from the first of January of the year of publica- tion, with a term of ten years for the right of trans- lation and playright. Posthumous works are pro- tected within fifty years from the death of the author. Assignments are valid only for thirty years, after which copyright reverts to the author. Written application for registration is requisite at the Na- tional Library, and deposit of one copy of a printed book or play must be made there within two years. Reservation of royalty for playright must be made on a printed work. Protection is confined to a native or resident or a Portuguese author of a work written in Portuguese — the latter in accordance with a treaty of reciprocity with Portugal (1889), the only treaty. Argentina, which under its constitution of 1853 Argentina and civil code of 1869 protected an author's produc- tions as general property, adopted in September, 1910, a copyright law, as an application of common law, providing for a term of life and ten years, or in the case of posthumous works twenty years from publi- cation. Protection is comprehensive of all classes of intellectual property, and extends to all forms of use without special reservation. By Presidential decree of February 4, 191 1, a. Section of Library deposit was 426 COPYRIGHT established as a division of the National Library. Registration is required by deposit of two printed copies or of an identifying reproduction within fif- teen days from publication for works published in the capital, or thirty days in the provinces, this in- cluding foreign works published within the coun- try, publication meaning the offering for sale therein. The law specifically applies to authors of other coun- tries with which Argentina has international relations, deposit in Buenos Aires being then not required where the formalities of the country of origin have been fulfilled. Argentina's international relations are dependent chiefly on the Montevideo convention of 1889, as ratified by Argentina with respect to Para- guay, Peru and Uruguay in 1894, Bolivia in 1903, and with respect to Belgium in 1903, France in 1896, Italy and Spain in 1900. Paraguay Paraguay and Uruguay, like Argentina, long pro- andUru- tected intellectual property as general property. ^^^ Paraguay's constitution of 1870 secures exclusive property to an author, and a new penal code, pro- mulgated in 1910, assures copyright on all classes of intellectual property, on registration in the public registries with prescribed fees, and punishes piracy by fine of double the profit and imprisonment. Uru- guay in its civil code of 1868 declared that the pro- ductions of talent or intellect are the property of their authors, to be regulated by special law, but no such law has been passed. Both countries have rela- tions with the other South American states parties to the Montevideo convention of 1889; Paraguay has also the same relations as Argentina with the European countries above cited. The statement that Paraguay is a party to the Mexico City convention of 1902 seems a misapprehension arising from the fact that her representative signed ad referendum. OTHER COUNTRIES 427 Chile, under the constitution of 1833 and law of Chile 1834 and its civil code of 1855 and penal code of 1874, protects copyright including playright for a general term of life and five years thereafter, which may be extended an additional five years, except for playright, by action of the government, corporate works for forty and posthumous works for ten years. Deposit of three copies is required at the National Library in Santiago. Protection is extended to foreign works [first?] published in Chile; a Chilean-made edi- tion of a work already published abroad may have protection for ten years. Chile has reciprocal rela- tions with the United States as a "proclaimed" country since May 25, 1896; by a provision in the treaty respecting parcels post, piratical copies of works copyright in the country of destination are to be excluded. Chile ratified only the ineffective Rio convention of 1906. Peru, under its law of 1849 and the constitution of Peru i860 and penal code, grants copyright including play- right for life and twenty years thereafter. Anonymous and pseudonymous works may be protected for the full term by deposit of the true name in a sealed en- velope. Posthumous works are protected for thirty years. Deposit is required of one copy in the public library and one copy in the department Prefecture. Protection is probably confined to an inhabitant of Peru, but Peru has reciprocal relations under the Montevideo convention as ratified October 25, 1889, with Argentina, Bolivia, Paraguay and Uruguay. Bolivia, which protected intellectual property by Bolivia its penal code of 1834, and later by a copyright law of 1879, adopted a brief copyright code, including play- right, in 1909, providing a general term of life and thirty years, with the peculiar provision that the pubUsher of a work of unrecognized authorship 428 COPYRIGHT hitherto unpublished may have protection for twenty years. Registration is required at the Ministry of PubHc Education and deposit of one copy of printed works must be made within one year of publication in the pubhc Hbraries, in default of which the work falls into the public domain. Bolivia has reciprocal relations under the Montevideo convention as ratified November 5, 1903, with Argentina, Paraguay, Peru and Uruguay, and also international arrangements with France (1887). Ecuador Ecuador, under the constitution of 1884 and law of 1887, grants copyright for life and fifty years, and playright for life and twenty-five years. Anonymous and pseudonymous works are protected fifty years beyond the death of the publisher, unless the author meantime substitutes his name; posthumous works for twenty-five years. There are special provisions for terms of fifty years in the case of translations, adaptations, compilations, etc., and for twenty-five years for editions of works of undefined authorship. Registration is required with notice of reservation of playright within six months from publication or three months from performance of an unpublished play. Three copies of a printed work must be deposited with the registrar for the use of the Minister of Public Education, the National Library and the provincial library. Titles of periodicals are specified as copy- rightable. Assignment must be registered to become operative. Protection is seemingly confined to a citizen of Ecuador, but it is expressly provided that a foreign author may assign right of translation or play- right to a citizen of Ecuador, who may then prevent infringement. Ecuador has reciprocal relations with Mexico (1888), as also with France (1898, 1905) and Spain (1900), all on the "most favored nation" basis. OTHER COUNTRIES 429 Colombia, under the Constitution and law of 1886, Colombia and the civil code of 1873 and penal code of 1890, protects copyright, including playright, for life and eighty years, and for the legal existence of a corpo- rate body, with the provision as in Spain respecting natural heirs. Registration is required within a year from publication or performance, at the Ministry of Public Education, with deposit of three copies, one for the Ministry and two for the National Library. If a work is not registered within the year, it falls into the public domain for ten years, but can thereafter be protected by registration within the succeeding year. Non-Colombian authors seem not to enjoy protection of the right of translation for a work printed in a country of foreign language. Colombia has treaties with Spain (1885) on the "most favored nation" basis, Italy (1892) and Switzerland (1908). Venezuela, under the law of 1894 ^^^ penal code of Venezuela 1897, protects copyright including playright in per- petuity, the publisher being considered the author in the case of anonymous and pseudonymous works pending legal proof of the identity of the author. In posthumous works protection is in perpetuity to the heirs or assigns. The right is secured by request to the district governor or state president for the issue of a patent with registry of title and verbal oath that the work has not been previously published within Vene- zuela or elsewhere; the patent certificate must be printed on the back of the title-page, and must be published at least four times in the official gazette. Deposit must be made of six copies at the Registry, two copies going to the Minister of Agriculture for the National Library. Protection is not specifically confined to Venezuelans, and seems to depend on first publication, but assignment to a citizen of Venezuela may be desirable. Venezuela has no foreign relations. XXII Copyrights in their business relations The German publishing law of igoi BUSINESS RELATIONS OF COPYIttGHT: AUTHOR AND PUBLISHER Business relations, founded on copyright, are chiefly those between author and publisher. These relations involve questions, not so much of copyright law in itself, as of the law of contract and other statutory and common law provisions. There has been more or less desire on the part of authors to include busi- ness relations within copyright statutes, and in fact the recommendations of the American (Authors) Copyright League to the initial copyright conference of 1905 covered several points of business law, as for instance the right of an author to recover possession of his work from the publisher in case the publisher failed to keep it in print, or the right to prevent as- signment of publication rights to a publisher unsatis- factory to the author. It was, however, determined, both in the conferences and by the Congressional Committees, to omit as far as practicable from the copyright law all questions of business relationship, and to leave these to specific contracts between au- thor and publisher or to the general provisions of law. The law, whether as to copyright or other mat- ters, should afford a basis of certainty for business, but it cannot wisely interfere with freedom of contract between the parties to a business transaction. American and English statutes accordingly make no special regulation of the calling of publisher. Provi- sion is, however, made in some continental countries for the regulation of publishing and publishers, as in Germany, where a law of June 19, 1901, passed coin- BUSINESS RELATIONS 431 cidently with the general copyright code, covers this field in remarkable detail. It provides that the au- thor, during the continuance of the publishing con- tract within the copyright period, may not reproduce or distribute the work otherwise than through the publisher, except in translation, dramatization (or if a play, novelization) or elaboration of a musical work which is not merely a transposition or arrangement. The author is privileged to include his work in a col- lected edition twenty years after publication, or an article from a collective work after one year; and the publisher may not republish in such form under the contract. Unless otherwise specified, the publisher Editions is entitled to print only one edition, if undefined one thousand copies, in addition to extra copies for re- placing damaged copies and not more than five per cent free copies ; destroyed copies may be replaced on notice to author. Opportunity for revision must be afforded to the author in new editions. Alterations Alterations are permitted to the author before reproduction and at his expense during the progress of the work, but he cannot be charged for alterations necessitated by new circumstances. The publisher may not make alterations or abbreviation of text or title, except those to which the author cannot fairly refuse con- sent. The publisher must issue the work in suitable form Issuance of in accordance with the customs of the trade and the """^^ character of the book, and immediately after receipt of the complete work or completed separate part. The publisher must take measures to keep the book in stock. He is not bound to produce a new edition, but if on request from the author he fails to do so, the publishing right reverts to the author. The publisher may cancel the contract, if the purpose of a work no longer exists, on payment of remuneration to the 432 COPYRIGHT Price and re- muneration Accidental destruction author. Proof for correction must be furnished to the author. The publisher may fix and reasonably reduce the price, but can raise it only with consent of the author. If remuneration is not specified, an equit- able payment is required, and the remuneration is due on the delivery or on the appearance of the work, or if determined by sale, then yearly, with opportu- nity to the author to verify the account from the pub- lisher's books. The author is entitled to free copies to the extent of one per cent of the edition, but not less than five nor more than fifteen, and to additional copies at the lowest trade price. The author is en- titled to return of his manuscript after reproduction, if stipulated at the beginning. The publisher may assign, in the absence of agree- ment, but not for separate works ; though for this last, consent cannot unreasonably be withheld and may be presumed if the author does not reply within two months to a demand ; and the assignee becomes, jointly with the original publisher, liable to the author for future performance of the contract. When a contract is completed by the issue of specified editions or cop- ies, the publisher is bound to notify the author, and if the contract is for a definite time, the publisher is not entitled to distribute remaining copies after that time. In case of delay in the contracted delivery of the work, the publisher, after a reasonable extension of time, may decline the work, unless delay involves only insignificant loss; and in case the work is not of stipulated quality, the publisher may also cancel the contract or require damages for non-fulfillment. The author has analogous rights as against the publisher. If the work is accidentally destroyed after delivery to the publisher, the author is entitled to remunera- tion, but the contract terminates; but the author BUSINESS RELATIONS 433 must, if practicable, rewrite it for additional remune- ration or may reproduce it gratuitously and require publication. Like rights may be enforced by either party in case of destruction for which the other is re- sponsible. Delivery is implied when the publisher is Delivery placed in position to accept the work. If the author dies after delivery of part of his work, the publisher may maintain his rights in the part delivered on specified notice to heirs; and if the author is abso- lutely prevented from completing his work, the pub- lisher has like right to the portion already prepared. The author may withdraw from his contract before reproduction of his work or a new edition is begun, if justified by unforeseen circumstances, on remunera- tion of publisher's expenses ; but if he publishes else- where within a year, he must also pay damages for nonfulfillment of contract to the original publisher, unless the latter has declined to resume the contract. The relations of a publisher in case of bankruptcy Bankruptcy are specifically treated, and the regulations of the of publisher civil code and general legal principles are specifically applied to cancellation of publishing contracts. On a non-copyright work, an author must not conceal Kon-copy- from the publisher that he cannot transfer exclusive right work right of publication ; but the author must act toward the publisher as though the work were copyrighted, at least until six months after publication The law is made applicable to articles in period- Articles in icals or portions of collective works. An article in a periodicals newspaper is at the disposal of the author immediately after publication ; an article in other periodicals after one year, unless exclusive continuing right has been sold to the publisher. A publisher is free to make usual alterations in an unsigned article. The author of an article may cancel his contract and obtain re- muneration in case it is not published within a year 434 COPYRIGHT The pub- lisher as merchant "Outright" transfer after delivery, but damages can be claimed only in case a time of publication has been named by the publisher. The author of a newspaper article has no claim to free copies or special terms. In the case of a work planned by the publisher, or a collaborative, supplementary or collective work commissioned by the publisher, the publisher is not bound to reproduce and distribute the work. The law is made applicable in case the contract with the publisher is made by another than the author. Appeal is authorized to the Supreme Court of the Empire. It is impracticable to cite all the details of this ex- traordinarily detailed law, but the provisions sum- marized afford a remarkable conspectus of German practice on business questions possibly arising be- tween author and publisher, useful in relation to American and English practice. The publisher is the merchant for the author, and the remuneration which he can pay to the author is limited by the price and sale which he can obtain from the book-buying public. The relation between author and publisher should be, as previously em- phasized, most fully, clearly and specifically set forth in the initial contract. "Agreements between author and publishers," said Vice Chancellor Page Wood in 1857 in Readew. Bentley, "assume a variety of forms. Some are so clear and explicit that no doubt can arise upon them. Thus, where an author assigns his copy- right, the transaction is one which every person un- derstands, and which leaves no room for uncertainty as to the rights of the parties." The work may in- deed be transferred "outright" without written con- tract, by the delivery of the manuscript and payment of a bargained sum, in which case the publisher be- comes the proprietor and may take out the copyright in his own name or that of the author, can assign the BUSINESS RELATIONS 435 work and treat it entirely as though his own, except that he cannot alter it to the detriment of the au- thor's reputation. But even in "outright" sale, a specific contract is desirable and is indeed necessary if the author is to agree with the publisher to apply for renewal and include the added period in the term. More usually, the contract between author and "joint publisher is on the basis of a specified royalty — usual adventure " in America, or "half profits," — more common in England, in which case the relation is not that of partnership but of a "joint adventure" terminable on notice unless it is made for a stated time, or for one or more editions, of a specified number of copies, or under other limiting conditions. In such case the expenses of publication may be borne by the pub- lisher, or the author may pay for the plates or for the edition, and receive correspondingly larger return. Unless there is actual or constructive partnership, the publisher, and not the author, is liable for paper, printing, and like accounts. Or the publisher may be simply the agent of the author in manufacturing his book and selling for a stated commission. A con- tract of publication usually implies exclusive right, but an author may contract with several publishers under a license agreement; and on the compulsory license system, often miscalled the "royalty plan," he must permit any publisher, who will pay him the license royalty, to issue the work. It is by means of the profit on successful books that Risk and the publisher is able to take risks with new books and P'ofi* new authors. It has been said that of five books, three fail, one covers its cost, the fifth must pay a pro- fit to cover the rest. The element of risk in the book business is, in fact, very large; if the author com- plains that his successful book ought not to pay for others' unsuccessful books, he can get over the diffi- culty by taking the risk himself. 436 COPYRIGHT Long price and "net" price Equities Tlie literary agent The publisher usually sells to the public through the retail trade at a stated retail price, which may be either long price, in which case the high price and large trade discount permit a discount to the public, or "net" price, a lower price with less discount, which the bookseller is expected to maintain. The practice of issuing books at "net" price is growing, in the belief that through this policy larger sales are made and the publisher's gains and the author's royalties fairly bal- ance. On the average, the publisher probably gets less per volume than the author, and the system is essentially on an equitable basis. The publisher's larger returns come from the fact that he handles more books than any one author writes. The publisher has usually, in bargaining with the author, the advant- age of larger experience and superior business ability, and of the fact that the author seeks him rather than he the author; but no law can better the author in these respects. As a matter of practice, the better publishing houses treat with new authors on the same basis as with old, through a standard form of contract. The author sometimes employs the " literary agent ' ' as an intermediary in finding a publisher, especially for a first book, and in making arrangements with the publisher, for which the agent expects a stated pay- ment or a proportion of the author's returns. The advantages of such intermediaries are offset by many disadvantages, and the best publishing houses treat an author as liberally and fairly in direct as through intermediate relations. In any event, the contract should be made and signed directly between author and publisher, as a third-party contract, or a double contract between author and agent and agent and publisher, presents serious complication in the event of future differences. The agent should not be given any lien on future works by the author. The literary BUSINESS RELATIONS 437 agent cannot accept conditions or make sale be- yond the authority given him by the author, and an innocent publisher may be held responsible for acts beyond that authority, as in the English case of Heinemann v. Smart Set Pub. Co., in 1909, where the defendants had bought "serial rights" with leave to condense into one number, which the agent had no authority to grant. In the publishing contract usual in America, the Usual Ameri- author "grants and assigns" to the publishers the can contract stated work, undertaking either to copyright it him- self or authorizing the publishers to enter copyright in their name, or as his attorneys in his name. The contract usually includes all translations, abridg- ments, selections, dramatizations, etc., or specifically reserves those to the author, the publishers in the first case agreeing to share profits or otherwise remuner- ate the author on such special forms. The author is expected to guarantee that he is sole owner of the work and has full power to make the grant, that the work is not a violation of any other copyright and that it is free from scandalous or libelous matter. The publishers undertake to publish the work in Publishers' such style as they deem best suited to its sale, at their obligations own expense, unless the author contracts to pay for the plates or for other publishing costs, and usually agree to account for sales semi-yearly or yearly and to make payments within four months thereafter. The royalty is usually based on the trade-list (retail) price, on the cloth or ordinary binding, or the style of binding in which the largest number of copies shall have been sold. It is frequently stipulated that on paper-bound copies, or editions or copies for schools or subscription sale, or a foreign market, or otherwise sold at a reduced price, the royalty shall be reduced, and that on press and other free copies no royalty shall 438 COPYRIGHT Reversion of contract Scope of contract be paid. When an author pays the cost of the edition or pays for making the plates, he may contract to pay a commission to the publisher and obtain the balance for himself, or he may contract for a larger percentage of return to him than the usual royalty percentage. The publishers are usually authorized to permit the printing of selections and to arrange for translations, etc., subject to the arrangement indicated above. The author is expected to pay for alterations either in full or above a stated sum, as fifty dollars, and to pro- vide any index or like equipment if required. Insurance is not usually required from the pub- lishers, but in case of fire or loss, the publishers have the option of reproducing the work, and if they de- cline to do so, the contract usually provides for recon- veyance of the copyright to the author and the termination of the agreement after the sale of copies remaining on hand. A publishing contract some- times provides that after a specified time from date of publication, as two or five years, if the publishers consider that the public demand does not justify con- tinuing publication, or for other reasons, they may offer to surrender their publishing rights on compen- sation for the plates, as at half cost, and remaining copies, as at cost, and if the author does not elect to accept this offer, then the publishers may sell copies on hand free from royalty and terminate the agree- ment, the copyright reverting to the author. The publishers are usually authorized, in their discretion, to protect the copyright by legal proceedings at their expense or at joint expense of publishers and author. The contract may be for the full term of copyright, with or without obligation on the part of the author to provide for renewal, or for a stated number of years and thereafter until terminated on stated no- tice, or it may be for a specified number of editions BUSINESS RELATIONS 439 or copies. It is often stipulated that on discontinu- ance, the author shall have the right to take over the plates at cost or half cost and remaining copies at cost, in default of which the publishers may sell copies free of royalty, — but not continue to use the plates. If the book contains illustrations not made originally for the work, the contract may provide that electro- types of them shall be transferred to the author for use solely in connection with the work in case of re- version of the copyright to him. The contract is usu- ally drawn subject to assignment by either party, but only as a whole; but the author may require that the work shall not be transferred, to another publisher or otherwise, without his consent. The contract may also reserve to the author a right Other works to discontinue the agreement in case the publishers ofa«*or elect not to publish other works, which he may offer to them, or it may bind the author to offer subse- quent works to the same publishers. This keeps in view the ultimate publication of a uniform collected edition of the author's works, which may also be cov- ered by a provision giving the author right to include his work in a collected edition after a stated time. The above summary gives the pith of a standard Standard form of contract which has been adopted, in more contract or less detail, by many American publishers, and is usually kept in printed form by them. Owing to the careful specifications in the American type of con- tract, there are fewer cases in the American than in the English court records referring to the relation be- tween authors and publishers; and the English "half profits" custom naturally leaves many more open questions of law and equity. Where there are serial rights to be considered, as Serial rights in the case of a novel, the agreement between author and publisher should be very clear. If an author con- 440 COPYRIGHT Republica- tion of periodical articles Foreign markets Contract to do work tracts for a serial with periodical publishers who are also book publishers, that contract should state whe- ther rights for book publication are involved or whe- ther the author is left free to arrange for book publi- cation independently. Conversely, where an author contracts for book publication, the contract should be explicit as to whether the author or the publishers shall exercise or arrange for serial publication, either before or after book publication. Where an author furnishes an article or series of articles for a periodical, it should be made clear, by letter or contract, whether the periodical publisher also obtains the right to republish such articles in other shape or whether such right reverts to the author, and if so, how soon after publication of the periodical. ■ In these days of increasing International relations, it is important that the author should have a clear understanding as to whether he retains the rights in other markets, whether in English speaking or foreign x:ountries; or conveys them to the publishers as within the agreement, but to be separately accounted for; or assigns them as an integral part of the transaction. As between America and England, many publishing firms have branch houses or representatives in the other country or are in special relations with an in- dependent firm therein. If the English market is con- veyed, there should be a clear-cut understanding as to whether this includes the Canadian, Australian and South African rights. It is usual that a lower roy- alty is paid to the author on sheets sold for another than the home market. The contract of an author with a publisher that he will write a specified book or work, is not usually en- forceable by the courts through specific performance, for the simple reason that a court has no means of com- BUSINESS RELATIONS 441 pelling an author to use his brain for a certain pur- pose, and the remedy against the author in this event is rather a suit for loss by failure to perform the con- tract, which loss is difficult to prove. If any remedy is to be provided, it should be stated in the contract as a specified penalty to be paid by the author, — a provision seldom included in publishing contracts. That an author may be held liable for a breach of con- tract if he declined without good cause to complete a work already partly delivered, was indicated in the early English case of Gale v. Leckie in 1817. An agree- ment to write a book may stand as an equitable as- signment on the completion of the book, as was held in Ward, Lock & Co. v. Long, in 1906 in the Chancery Division by Justice Kekewich. An author who has contracted not to write on a Contract stated subject or for other publishers, may be en- not to write joined from such act. This was decided by early English precedents, as when in the case of Morris v. Colman, in 18 12, Lord Chancellor Eldon held that Colman, in virtue of his contract to write plays for the Haymarket Theatre and for no other, could be restrained from furnishing plays to another theatre, though he could not be compelled to write plays ; the same judge, in Clarke v. Price, held in 18 19 that he could neither compel Price to continue to furnish Ex- chequer reports to the plaintiff publisher nor restrain him from furnishing such reports to another publisher, because the contract contained no specific provision to the latter effect. It is probable that the undertak- ing of an author not to prejudice the sale of his book by writing another of like subject, though under a different title, may be enforced even against a succeed- ing publisher who had no knowledge of that under- taking, as was indicated in Barfield v. Nicholson in 1824. Thus publishers were granted equitable relief 442 COPYRIGHT Implied obligations Contract personal and mutual against an author who had sold to other publishers modifications of an arithmetical series of which the copyright had been sold to the plaintiffs, in Wooster V. Crane in the U. S. Circuit Court of Appeals, in 1906. In Brooke v. Chitty, however, in 1831, Lord Brougham declined to restrain Chitty from writing a certain book, on the ground that the court could not act until there was actual printing and publication. The publisher, vice versa, cannot be restrained from publishing a rival work, even though it competes di- rectly with a work already published or contracted for, unless that is distinctly forbidden in the contract with the first author. If a publisher prints without special agreement a manuscript submitted for approval, the courts will enforce reasonable payment; and in 1893, in Mac- donald v. National Review, in an English county court, it was held that printer's proof sent by the publisher to the author, implied acceptance for pub- lication. That the publisher may be held responsible for loss of a manuscript by the negligence of his employees, was held in Stone v. Long, in the King's Bench Division, by Master Chitty in 1903. An implied obligation to publish an accepted work was recognized in the Canadian case of Le Sueur v. Morang, where the Canadian Supreme Court afifirmed in 1 91 1 the decision that if a publisher withholds from publication a work of which he had bought the copyright " outright," the author might claim the work on return of the purchase money. The contract between author and publisher is of a personal nature and therefore not assignable, in the absence of specific provision, except with consent of the other party. As it is with a particular author that a publisher contracts for a book, so an author con- tracts with a publisher of his choice and cannot be BUSINESS RELATION 443 required to accept another. This is especially true Contract where, on a profit-sharing or royalty arrangement, the Personal and author relies on the skill of the publisher for his mar- ™"*"*' ket. Where E. V. Lucas had arranged with Grant Richards to publish a work on half profit, it was held in the Chancery Division in 1905 by Justice Warring- ton in a suit against the publishers' trustee in bank- ruptcy, that the contract was terminated by bank- ruptcy and that Mr. Lucas on fair purchase of the remaining copies, might contract with another pub- lisher. There is more question when the contract is for a specified sum; and where the copyright is assigned by outright purchase the rule would not hold good, for the publisher then becomes the copyright proprie- tor. But even when a publisher has bought a copy- right " outright," he may not do the author the wrong of printing the work in such altered shape as to injure the author's reputation, as was held in 1832 in the English case of Archbold v. Sweet, where a third edi- tion of Archbold's legal work printed "with very considerable additions," which the plaintiff showed to contain gross blunders, was enjoined. But when work is done, to be published under the name of an- other, the actual writer may not prevent alteration by the employer, as was decided in Cox v. Cox in 1853, by the Vice Chancellor. Such a personal contract can- not be transferred as a bankruptcy asset, and on the bankruptcy of the publisher the rights revert to the author, except that stock on hand may perhaps be sold to another, who may not, however, distribute it to the disadvantage of the author. The personal contract involves personal guarantee by each party to the other of good faith and coSperative support, and neither party may act to the disadvantage of the other. The author, during the continuance of a publishing contract, must not permit the use of his of this doc- trine 444 COPYRIGHT work otherwise, to the prejudice of the original pub- lisher, and the publisher must not sell copies to the injury of the future market of the author, English de- This general doctrine was worked out in a chain of velopment early English cases, the first of which was that of Sweet V. Cater, in 184 1, where Vice Chancellor Shad- well decided that the plaintiff publisher who had con- tracted with Sir Edward Sugden to publish a tenth edition of 2500 copies of his legal work, could, until the specified copies were sold, prevent the publishing of another edition by the defendant publisher, de- spite any arrangements between the author and the latter. It was strongly upheld by Vice Chancellor Page Wood in the case of Stevens v. Benning, in 1854, affirmed on appeal by the Lords Justices, and Reade V. Bentley, in 1857. In the first case Forsyth con- tracted for the publication of his legal work, under- taking to make future revision for subsequent edi- tions, with the publishing firm of the elder Benning, and on its bankruptcy, four hundred copies of the sec- ond edition were sold to Stevens & Norton, which firm sued to prevent the younger Benning from pub- lishing a third edition as revised by Forsyth. The Vice Chancellor held that though the plaintiffs might presumably sell the copies, if done without disadvant- age to the author, the original contract was not an assignment, but a personal contract which could not pass to the plaintiffs, and therefore denied an injunc- tion. In the second case, where Charles Reade sought to resume his rights in " Peg Woffington" and " Chris- tie Johnstone," from his publisher Bentley, after all expenses had been paid and profits on several editions accounted for, the Vice Chancellor held that the con- tract, as of a personal nature, could be terminated by the author when that did not involve loss to the other party. Copies printed to replace others destroyed by BUSINESS RELATIONS 445 fire were decided in the case of Blackwood v. Brew- ster, in i860, in the Scotch Court of Session, not to constitute a new edition. In the later case of Hole v. Bradbury, in 1879, a joint author and the heir of a de- ceased joint author of " A little tour in Ireland" were adjudged by Justice Fry to be entitled to resume their rights and to recover the illustrations from publish- ers who had succeeded to the business of the original publishing firm. In Warne v. Routledge, in 1874, where Mrs. Cook Author's sought to transfer from one publisher to another with- f^^"?^®*^ out notice a book of which 44,000 copies had been publishers printed and 42,000 sold, the plaintiff publisher sought to restrain the defendant from issuing a new edition until the remaining copies had been sold. Sir George Jessel, M. R., held that the right of publishing was an exclusive one for the time of the contract, though the word exclusive was not used, but that the author could provide for publication by another publisher immediately on terminating a contract, — a decision which has been criticized as not compatible with other decisions nor sound law. Where a proprietary name becomes identified with Proprietary a publication, an assignment of the work may estop name the person named from use of his name or advertise- ment of his service elsewhere, as in the English case of Ward v. Beeton, in 1875, where the originator of "Beeton's Christmas Annual," who had been dis- missed by the publishers of that work, was restrained from advertising that he would edit a similar publica- tion for another publisher. But the editor's name is not necessarily part of the title, and an editor may not restrain its omission from the title-page, as was held in the English case of Crookes v. Fetter, in i860. It was decided in the English case of Howitt v. Hall, in 1862, by Vice Chancellor Fage Wood, that where a 446 COPYRIGHT Copies re- maining unsold American confirmation publisher had procured from an author the copyright for a limited term, in that case four years, he had the right to sell, after the expiration of the contract term, copies printed in good faith within the term, though the court indicated that if there had been an excessive printing of the work with the evident purpose of stock- ing up for sale after expiration of the contract, such course would not be permitted. This precedent in- dicates that a publisher would have the right to sell copies printed during the original term of copyright and remaining in stock, even if an author under the renewal provision of the American code exercised the right to make arrangements with another publisher for the renewal term. To like effect it was decided in the English case of Taylor v. Pillow, in 1 869, by Vice Chancellor James, that a copyright proprietor as- signing the copyright might thereafter dispose of copies of a song remaining unsold, in the absence of stipulations to the contrary. These questions are usu- ally decided in advance in American publishing prac- tice by provision in the contract between author and publisher that copies remaining unsold at the end of the contract term may be reclaimed by the author at a stated price — and some such provision is always desirable. The same doctrine was upheld in the American case of Pulte V. Derby, in 1852, in the U. S. Circuit Court by Judge McLean, who held that where the contract for publishing a second edition provided that the publishers might print as many copies as they could sell, the publishers might make successive printings in that edition, and that the use of the words "third edi- tion " on the title-page did not terminate the arrange- ment. The author could not meantime publish otherwise, but the publishers, who held legal title to the copyright within the terms of the contract, could BUSINESS RELATIONS 447 not exercise rights beyond the second edition, nor could they assign their rights. American publishers usually expect the author to Renewal make a contract for the entire copyright period, and *^"" to make application in their behalf for the renewal term. It is true that the very large percentage of books lose their value long before the close of the original term, and that the percentage where renewal is desirable is very small. It was a thought to which "Mark Twain's" mind often recurred that a long copyright term was not de- sirable, because so few books were of value at the end of one or two decades, and he frequently put forward a scheme for extending copyright from period to pe- riod, based on the issuance of a cheap edition under the author's sanction. This scheme, which he pre- sented in some detail at the time of the Congressional copyright hearings, did not receive support from other students and advocates of copyright. A contract giving publishers the "whole and exclu- License not sive right of publication," was decided /w re Clinical assignment Obstetrics by the Chancery Court, through Justice Warrington, in 1908, to be a personal contract and license, not an assignment of copyright, and the assignment entries were ordered to be expunged, in line with the decision in 1907 by the Court of Appeal in Re "The Liedertafel series" et al. The publication of a book involves many indirect Author's and expenses, in addition to the direct cost of manufac- publisher's ture, such as the share of general office expenses, the ^^° large item of advertising and the like. These are diffi- cult to allot, and this helps to make the "half profits " system a fruitful occasion of disagreements. On this system or on the commission basis, the nature and proportion of these indirect charges should be clearly set forth in the publishing agreement. On a "half 448 COPYRIGHT profit" or similar plan, the publisher is not considered to be entitled to make his own profit on paper, print- ing, etc., but must account for these at the cost to him ; and in any event the publishers' accounts must be fully open to the author. On the whole, the pay- ment of royalty, on the usual American plan, is more satisfactory. The customary royalty is ten per cent, or in the case of authors of established repu- tation whose works have large sale, as high as fifteen or twenty per cent, when the publishers cover all ex- penses, except that on school books and "subscrip- tion" editions the royalty is usually five per cent. When an author pays for the plates or for the edition, the return is substantially higher, as fifteen or twenty per cent to the ordinary author. The royalty is usually reckoned on ordinary cloth binding, unless otherwise stated in the contract, and almost invari- ably not on copies printed, but on copies sold. A royalty on "all copies sold" was construed in the King's Bench Division by Justice Walton, in Neufeld V. Chapman in 1901, to cover all forms of publica- tion, including royalty on a proportionate part of the sales price of a periodical. The publish- The publisher does not, as is sometimes assumed, er's share get the Other ninety per cent as profit;' he gets the difference between the receipts from the trade or pub- lic on copies actually sold — averaging perhaps two thirds of the "retail price," on which the author's ten per cent (really thus fifteen per cent) is reckoned — and the cost of making the entire edition and of adver- tising and marketing the book. The author, in any event, gets a return proportioned to the success of his book. If its sales are small, the publisher makes a loss; if large, the publisher makes a profit increasing proportionately after the initial outlay for publication has been covered. BUSINESS RELATIONS 449 When an author arranges with a publisher or print- "Author's er to issue a book at author's expense, such editions ® • • 1 1- t 111 iisnanavena (a) 1 o print, repnnt, publish, copy, and vend the copy- righted work; (b) To translate the copyrighted work into other Ian- To translate, guages or dialects, or make any other version thereof, if it dramatize be a literary work; to dramatize it if it be a nondramatic ^"■^ns* ^^^ work ; to convert it into a novel or other nondramatic work * P • ® '^• 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; (c) To deliver or authorize the delivery of the copy- To deliver righted work in public for profit if it be a lecture, sermon, lectures, ser- address, or similar production; mons,etc. (d) To perform or represent the copyrighted work pub- licly if it be a drama or, if it be a dramatic work and not re- To represent produced in copies for sale, to vend any manuscript or any dramatic recordwhatsoever thereof; to make or to procure the mak- ^^^' °^ ^ ing of any transcription or record thereof by or from which, ^^ exhibit ' in whole or in part, it may in any manner or by any method or perform, be exhibited, performed, represented, produced, or repro- etc. duced; and to exhibit, perform, represent, produce, or re- produce it in any manner or by any method whatsoever; (e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public 466 COPYRIGHT To peifoim music and make ar- rangement, setting, or record Act hot re- troactive. Music by foreign author Control of mechanical musical re- production Royalty for use of music on records, etc. Notice of use of music on records License to use music on records 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: Provided, That the provisions of this Act, so far as they se- cure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this Act goes into effect, and shall not include the works of a for- eign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: And provided further, and as a condition of extending the copyright control to such mechanical reproductions, That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright pro- prietor of a royalty of two cents on each such part manu- factured, to be paid by the manufacturer thereof; and the copyright proprietor may require, and if so the manufac- turer shall furnish, a report under oath on the twentieth day of each month on the number of parts of instruments manufactured during the previous month serving to repro- duce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the twentieth of the next succeeding month. The pay- ment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit: ^«^ provided further, That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musi- cal work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, UNITED STATES CODE, 1909 467 and any failure to file such notice shall be a complete de- fense to any suit, action, or proceeding for any infringe- ment of such copyright. In case of the failure of such manufacturer to pay to the FaUure to copyright proprietor within thirty days after demand in pay royalties writing the full sum of royalties due at said rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in ad- dition over the amount found to be due as royalty in ac- cordance with the terms of this Act, not exceeding three times such amount. The reproduction or rendition of a musical composition Reproduc- by or upon coin-operated machines shall not be deemed a ^on of music public performance for profit unless a fee is charged for ad- °° '°"'' mission to the place where such reproduction or rendition ^^jjingg occurs. Sec. 2. That nothing in this Act shall be construed to Right at annul or limit the right of the author or proprietor of an common law unpublished work, at common law or in equity, to prevent *" "^ equity the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor. Sec. 3. That the copyright provided by this Act shall Component protect all the copyrightable component parts of the work parts of copy- copyrighted, and all matter therein in which copyright is "^ , ® already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite Composite works or periodicals shall give to the proprietor thereof all works or the rights in respect thereto which he would have if each Penodicals part were individually copyrighted under this Act. Sec. 4. That the work's for which copyright may be se- Works pro- cured under this Act shall include all the writings of an tected author. Sec. 5. That the application for registration shall spe- Classifica- cify to which of the following classes the work in which tion of copy- copyright is claimed belongs : "SW works (a) Books, including composite and cyclopaedic works, directories, gazetteers, and other compilations; (b) Periodicals, including newspapers; 468 COPYRIGHT (c) Lectures, sermons, addresses, prepared for oral de- livery; (d) Dramatic or dramatico-musical compositions; (e) Musical compositions; (f) Maps; (g) Works of art; models or designs for works of art; (h) Reproductions of a work of art; (i) Drawings or plastic works of a scientific or technical character ; (j) Photographs; (k) Prints and pictorial illustrations: Classiflca- Provided, nevertheless, That the above specifications shall tion does not not be held to limit the subject-matter of copyright as de- linut copy- fined in section four of this Act, nor shall any error in clas- " sification invalidate or impair the copyright protection secured under this Act. Compila- Sec. 6. That compilations or abridgements, adapta- tions, tions, arrangements, dramatizations, translations, or other abridge- versions of works in the public domain, or of copyrighted dramatiza- '"'^orks when produced with the consent of the proprietor tions, of the copyright in such works, or works republished with translations, new matter, shall be regarded as new works subject to copy- new editions right under the provisions of this Act; but the publication Subsisting of any such new works shall not affect the force or validity copyright not of any subsisting copyright upon the matter employed or affected ^jjy p^rt thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or ex- tend copyright in such original works. Not subject- Sec. 7. That no copyright shall subsist in the original matter of text of any work which is in the public domain, or in any copyright: ^ork which was published in this country or any foreign worksinpub- . . .1, ■ .. n-^r^, .. ,, he domain- country prior to the gomg mto effect of this Act and has government not been already copyrighted in the United States, or in publications any publication of the United States Government, or any reprint, in whole or in part, thereof: Provided, however That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgement or annulment of the copyright or to au- UNITED STATES CODE, 1909 469 thorize any use or appropriation of such copyright material without the consent of the copyright proprietor. Sec. 8. That the author or proprietor of any work made the subject of copyright by this Act, or his executors, ad- ministrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act: Provided, however, That the copyright secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only: (a) When an alien author or proprietor shall be domi- ciled within the United States at the time of the first publi- cation of his work; or (b) When the foreign state or nation of which such au- thor or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such for- eign author under this Act, or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto. The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require. Sec. 9. That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act ; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section twenty-one of this Act. Sec. 10. That such person may obtain registration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the register of copyright shall issue to him the certificate provided for in section fifty-five of this Act. Copyright to author or proprietor for terms specified in Act Foreign au- thors Alien authors domiciled in U.S. Authors, when citi- zens of coun- tries grant- ing reciprocal rights International agreement Presidential proclama- tion Publication with notice initiates copyright Registration of copyright Copyright certificate 470 COPYRIGHT Copyright protection of unpublished works: lectures, dramas, music, etc Deposit of copies after publication Two com- plete copies of best edi- tion Periodical contribu- tions Work not re- produced in copies for sale No action for infringement until deposit of copies Failure to de- posit copies Register of copyrights may de- mand copies Sec. II. That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic or musical composition ; of a photographic print if the work be a photograph ; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing. But the privilege of registration of copyright secured hereunder shall not exempt the copy- right proprietor from the deposit of copies under sections twelve and thirteen of this Act where the work is later re- produced in copies for sale. Sec. 12. That after copyright has been secured by pub- lication of the work with the notice of copyright as pro- vided in section nine of this Act, there shall be promptly deposited in the copyright office or in the mail addressed to the register of copyrights, Washington, District of Colum- bia, two complete copies of the best edition thereof then published, which copies, if the work be a book or periodical, shall have been produced in accordance with the manufac- turing provisions specified in section fifteen of this Act; or if such work be a contribution to a periodical, for which contribution special registration is requested, one copy of the issue or issues containing such contribution ; or if the work is not reproduced in copies for sale, there shall be de- posited the copy, print, photograph, or other identifying reproduction provided by section eleven of this Act, such copies or copy, print, photograph, or other reproduction to be accompanied in each case by a claim of copyright. No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with. Sec. 13. That should the copies called for by section twelve of this Act not be promptly deposited as herein pro- vided, the register of copyrights may at any time after the publication of the work, upon actual notice, require the proprietor of the copyright to deposit them, and after the said demand shall have been made, in default of the deposit UNITED STATES CODE, 1909 471 of copies of the work within three months from any part of the United States, except an outlying territorial possession of the United States, or within six months from any outly- Fine $roo ing territorial possession of the United States, or from any ^<* letail foreign country, the proprietor of the copyright shall be '^'1® .^ liable to a fine of one hundred dollars and to pay to the Li- edition brary of Congress twice the amount of the retail price of the best edition of the work, and the copyright shall be- Forfeiture of come void. copyright Sec. 14. That the postmaster to whom are delivered Postmaster's the articles deposited as provided in sections eleven and receipt twelve of this Act shall, if requested, give a receipt there- for and shall mail them to their destination without cost to the copyright claimant. Sec. 15. That of the printed book or periodical sped- Printed from fied in section five, subsections (a) and (b) of this Act, ex- t^e set cept the original text of a book of foreign origin in a Ian- ^i"*™ "• °- guage or languages other than English, the text of all cop- ." j "* ies accorded protection under this Act, except as below pro- excepted vided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein, or, if the I-ithographic text be produced by lithographic process, or photo-engrav- Z^^a^^g ing process, then by a process wholly performed within process the limits of the United States, and the printing of the text Printing and and binding of the said book shall be performed within the binding of limits of the United States ; which requirements shall ex- ^^ ^°°^ tend also to the illustrations within a book consisting of piustations printed text and illustrations produced by lithographic ^* °° process, or photo-engraving process, and also to separate u^oCTaphs lithographs or photo-engravings, except where in either and photo- case the subjects represented are located in a foreign coun- engravings try and illustrate a scientific work or reproduce a work of Books for art; but they shall not apply to works in raised characters blind ez- for the use of the blind, or to books of foreign origin in a <=6P*6^ language or languages other than English, or to books pub- ^°°^fj*° lished abroad in the English language seeking ad interim i^^ges protection under this Act. excepted 472 COPYRIGHT Affidavit of American manufacture Printing and binding of the book Establish- ment where printing was done Date of pub- lication False affida- vit, a misde- meanor; fine, Si, 000 and forfeiture of copyright Notice of copyright Sec. 1 6. That in the case of the book the copies so deposited shall be accompanied by an affidavit, under the official seal of any officer authorized to administer oaths within the United States, duly made by the person claim- ing copyright or by his duly authorized agent or represen- tative residing in the United States, or by the printer who has printed the book, setting forth that the copies deposited have been printed from type set within the limits of the United States or from plates made within the limits of the United States from type set therein; or, if the text be pro- duced by lithographic process, or photo-engraving process, that such process was wholly performed within the limits of the United States, and that the printing of the text and binding of the said book have also been performed within the limits of the United States. Such affidavit shall state also the place where and the establishment or establish- ments in which such type was set or plates were made or lithographic process, or photo-engraving process or print- ing and binding were performed and the date of the completion of the printing of the book or the date of pub- lication. Sec. 17. That any person who, for the purpose of ob- taining registration of a claim to copyright, shall know- ingly make a false affidavit as to his having complied with the above conditions shall be deemed guilty of a misde- meanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, and all of his rights and privileges under said copyright shall thereafter be forfeited. Sec. 18. That the notice of copyright' required by sec- tion nine of this Act shall consist either of the word " Copy- right" or the abbreviation "Copr." accompanied by the » The Act of June 18, 1874, provides that the notice of copyright to be inscribed on each copy of a copyrighted work shall consist of the following words: "Entered according to act of Congress, in the year , by A. B., in the office of the Librarian of Congress, at Washington"; or, . . . the word " Copyright," together with the year the copyright was en- tered, and the name of the party by whom it was taken out, thus: "Copyright, 18— by A. B." UNITED STATES CODE, 1909 473 name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured Notice on by publication. In the case, however, of copies of works maps, copies specified in subsections (f) to (k), inclusive, of section five °L^°?! °^ of this Act, the notice may consist of the letter C inclosed graphs and within a circle, thus : (C), accompanied by the initials, mono- prints gram, mark, or symbol of the copyright proprietor: Pro- Notice on vided, That on some accessible portion of such copies or of accessible the margin, back, permanent base, or pedestal, or of the P°r*'<"* substance on which such copies shall be mounted, his name shall appear. But in the case of works in which copyright Notice on ex- is subsisting when this Act shall go into effect, the notice isting copy- of copyright may be either in one of the forms prescribed V^ ^"^ ^ herein or in one of those prescribed by the Act of June below] eighteenth, eighteen hundred and seventy- four. Sec. 19. That the notice of copyright shall be applied. Notice of in the case of a book or other printed publication, upon its copyright on title-page or the page immediately following, or if a periodi- °° cal either upon the title-page or upon the first page of text On periodi- of each separate number or under the title heading, or if a ^^ musical work either upon its title-page or the first page of One notice music: Provided, That one notice of copyright in each vol- "i^ach ume or in each number of a newspaper or periodical pub- Igri^cal lished shall suffice. Sec. 20. That where the copyright proprietor has sought Omission of to comply with the provisions of this Act with respect to °ot|ce by notice, the omission by accident or mistake of the pre- ^g't^ke °' scribed notice from a particular copy or copies shall not invalidate the copyright or prevent recovery for infringe- ment against any person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent in- Innocent in- fringer, who has been misled by the omission of the notice; fr">ge°ieit and in a suit for infringement no permanent injunction shall be had unless the copyright proprietor shall reim- burse to the innocent infringer his reasonable outlay, in- nocently incurred, if the court, in its discretion, shall so direct. 474 COPYRIGHT Book pub- lished abroad in the Eng- lish lan- guage Ad interim copyright for 30 days Extension to fiUl tenn Deposit of copies, filing of affidavit Duration of copyright: ist tenn, 28 years Posthumous works, periodicals, cyclopaedic ' or composite works Renewal term 38 years Sec. 21. That in the case of a book published abroad in the English language before publication in this country, the deposit in the copyright office, not later than thirty days after its publication abroad, of one complete copy of the foreign edition, with a request for the reservation of the copyright and a statement of the name and nationality of the author and of the copyright proprietor and of the date of publication of the said book, shall secure to the author or proprietor an ad interim copyright, which shall have all the force and effect given to copyright by this Act, and shall endure until the expiration of thirty days after such deposit in the copyright office. Sec. 22. That whenever within the period of such ad interim protection an authorized edition of such book shall be published within the United States, in accordance with the manufacturing provisions specified in section fifteen of this Act, and whenever the provisions of this Act as to deposit of copies, registration, filing of affidavit, and the printing of the copyright notice shall have been duly complied with, the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act. Sec. 23. That the copyright secured by this Act shall endure for twenty-eight years from the date of first publi- cation, whether the copyrighted work bears the author's true name or is published anonymously or under an as- sumed name : Provided, That in the case of any posthumous work or of any periodical, cyclopaedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any UNITED STATES CODE, 1909 475 other copyrighted work, including a contribution by an in- Other copy- dividual author to a periodical or to a cyclopaedic or other righted composite work when such contribution has been separate- works, first ately registered, the author of such work, if still living, or y/™g^ the widow, widower, or children of the author, if the au- Renewal thor be not living, or if such author, widow, widower, or term 28 children be not living, then the author's executors, or in the years; to absence of a will, his next of kin shall be entitled to a re- author, wid- newal and extension of the copyright in such work for a ?3'.- „ _!^I , , , . , 1 ,. . r neirs or next further term of twenty-eight years when application for ^f 1^;^ such renewal and extension shall have been made to the Notice that copyright office and duly registered therein within one year renewal term prior to the expiration of the original term of copyright: >s desired And provided further, That in default of the registration of Copyright such application for renewal and extension, the copyright ends in 28 in any work shall determine at the expiration of twenty- 7^^^ unless eight years from first publication. renewe Sec. 24. That the copyright subsisting in any work at Extension of the time when this Act goes into eiTect may, at the expira- subsisting tion of the term provided for under existing law, be re- cpyng^ts newed and extended by the author of such work if still liv- ing, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then by the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this Act, including the renewal period: Provided, however. Proprietor That if the work be a composite work upon which copy- entitled to right was originally secured by the proprietor thereof, then renewal for such proprietor shall be entitled to the privilege of renewal ^"^ °^^ * and extension granted under this section: Provided, That application for such renewal and extension shall be made Renewal ap- to the copyright office and duly registered therein within plication one year prior to the expiration of the existing term. Sec. 25. That if any person shall infringe the copyright Infringe- in any work protected under the copyright laws of the ment of copy- United States such person shall be liable: "sht (a) To an injunction restraining such infringement; Injunction (b) To pay to the copyright proprietor such damages as Damages 476 COPYRIGHT Proving Newspaper reproduction of photo- graph; re- covery, $50- $200 Mazimum recovery, $S>ooo Minimum recovery, $250 Painting, sta- tue, or sculp- ture, $10 per copy Other works, $1 per copy Lectures, S50 Dramatic or musical works, $100 and $50 Other musi- cal composi- tions, $10 Delivering up infringing articles Destruction the copyright proprietor may have suffered due to the in- fringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discre- tion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photo- graph such damages shall not exceed the sum of two hun- dred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hun- dred and fifty dollars, and shall not be regarded as a pen- alty: First. In the case of a painting, statue, or sculpture ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees; Second. In the case of any work enumerated in sec- tion five of this Act, except a painting, statue, or sculp- ture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees; Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery; Fourth. In the case of dramatic or dramatico-musi- cal or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subse- quent infringing performance ; in the case of other mu- sical compositions, ten dollars for every infringing performance; (c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copyright; (d) To deliver up on oath for destruction all the infring- ing copies or devices, as well as all plates, molds, matrices UNITED STATES CODE, 1909 477 or other means for making such infringing copies as the court may order; (e) Whenever the owner of a musical copyright has used Infringe- or permitted the use of the copyrighted work upon the mentby parts of musical instruments serving to reproduce mechani- ™e^nical cally the musical work, then in case of infringement of such copyright by the unauthorized manufacture, use, or sale of interchangeable parts, such as disks, rolls, bands, or cylin- ders for use in mechanical music-producing machines adapted to reproduce the copyrighted music, no criminal action shall be brought, but in a civil action an injunction Injunction may be granted upon such terms as the court may impose, ™*y ^^ and the plaintiff shall be entitled to recover in lieu of pro- ^^^ ® fits and damages a royalty as provided in section one, sub- Recovery of section (e), of this Act: Provided also, That whenever any royalty person, in the absence of a license agreement, intends to use a copyrighted musical composition upon the parts of instruments serving to reproduce mechanically the musical work, relying upon the compulsory license provision of this Act, he shall serve notice of such intention, by registered Notice to mail, upon the copyright proprietor at his last address dis- proprietor of closed by the records of the copyright office, sending to the "itention to copyright office a duplicate of such notice ; and in case of his failure so to do the court may, in its discretion, in addition Damages, to sums hereinabove mentioned, award the complainant a U^r^e times further sum, not to exceed three times the amount provided *1^°'J''* ^"' by section one, subsection (e), by way of damages, and not as a penalty, and also a temporary injunction until the full Temporary award is paid. injunction Rules and regulations for practice and procedure under Rules for this section shall be prescribed by the Supreme Court of practice and the United States. P™"***"^ Sec. 26. That any court given jurisdiction under sec- Judgment tion thirty-four of this Act may proceed in any action, suit, enforcing or proceeding instituted for violation of any provision ^^°^^ ** hereof to enter a judgment or decree enforcing the remedies herein provided. Sec. 27. That the proceedings for an injunction, dam- Proceedings, ages, and profits, and those for the seizure of infringing injunction, 478 COPYRIGHT etc., may be united in one action Penalty for willful in- fringement Oratorios, cantatas, etc. may be per- formed False notice of copyright (penalty for) Fraudulent removal of notice; fine Sioo-SifOoo Issuing, sell- ing, or im- porting article bear- ing false notice; fine Sioo Importation prohibited of articles bear- ing false no- ticeandfnrat- ical copies Prohibition of importa- tion of books copies, plates, molds, matrices, and so forth, aforemen- tioned, may be united in one action. Sec. 28. That any person who willfully and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon convic- tion thereof shall be punished by imprisonment for not ex- ceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court: Provided, however, That nothing in this Act shall be so construed as to prevent the performance of religious or secular works, such as oratorios, cantatas, masses, or octavo choruses by public schools, church choirs or vocal societies, rented, borrowed, or obtained from some public library, public school, church choir, school choir, or vocal society, provided the performance is given for charit- able or educational purposes and not for profit. Skc. 29. That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any un- copyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copy- righted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars. Sec. 30. That the importation into the United States of any article bearing a false notice of copyright when there is no existing copyright thereon in the United States, or of any piratical copies of any work copyrighted in the United States, is prohibited. Sec. 31. That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof UNITED STATES CODE, 1909 479 (although authorized by the author or proprietor) which have not been produced in accordance with the manufac- turing provisions specified in section fifteen of this Act, or any plates of the same not made from type set within the limits of the United States, or any copies thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in accordance with the provisions of section fifteen of this Act, shall be, and is hereby, prohibited : Provided, however, That, except as re- gards piratical copies, such prohibition shall not apply: (a) To works in raised characters for the use of the blind ; (b) To a foreign newspaper or magazine, although con- taining matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor, unless such newspaper or magazine contains also copyright mat- ter printed or reprinted without such authorization ; (c) To the authorized edition of a book in a foreign lan- guage or languages of which only a translation into Eng- lish has been copyrighted in this country; (d) To any book published abroad with the authoriza- tion of the author or copyright proprietor when imported under the circumstances stated in one of the four subdivi- sions following, that is to say: First. When imported, not more than one copy at one time, for individual use and not for sale ; but such privilege of importation shall not extend to a foreign reprint of a book by an American author copyrighted in the United States; Second. When imported by the authority or for the use of the United States ; Third. When imported, for use and not for sale, not more than one copy of any such book in any one in- voice, in good faith, by or for any society or institution incorporated for educational, literary, philosophical, scientific, or religious purposes, or for the encourage- ment of the fine arts, or for any college, academy, school, or seminary of learning, or for any State, school, college, university, or free public library in the United States; Exceptions to prohibition Works for the blind Foreign newspapers or magazines Books in foreign Importation of authorized foreign books permitted For individ- ual use and not for sale For the use of U.S. For the use of societies, libraries, etc. 48o COPYRIGHT Libraries purchased en bloc Books brought per- sonally into U.S. Imported copies not to be used to violate copyright Seizure of unlawfully imported copies Copies of authorized books im- ported may be returned Secretary of Treasury and Postmaster- General to make rules to prevent unlawful importation Fourth. When such books form parts of libraries or collections purchased en bloc for the use of societies, institutions, or libraries designated in the foregoing paragraph, or form parts of the libraries or personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That copies imported as above may not lawfully be used in any way to violate the rights of the proprietor of the American copyright or annul or Umit the copyright protection secured by this Act, and such unlawful use shall be deemed an infringement of copyright. Sec. 32. That any and all articles prohibited importa- tion by this Act which are brought into the United States from any foreign country (except in the mails) shall be seized and forfeited by like proceedings as those provided by law for the seizure and condemnation of property im- ported into the United States in violation of the customs revenue laws. Such articles when forfeited shall be de- stroyed in such manner as the Secretary of the Treasury or the court, as the case may be, shall direct: Provided, however. That all copies of authorized editions of copyright books imported in the mails or otherwise in violation of the provisions of this Act may be exported and returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury, in a written application, that such importation does not involve willful negligence or fraud. Sec. 33. That the Secretary of the Treasury and the Postmaster-General are hereby empowered and required to make and enforce such joint rules and regulations as shall prevent the importation into the United States in the mails of articles prohibited importation by this Act, and may require notice to be given to the Treasury Depart- ment, or Post-Ofifice Department, as the case may be, by copyright proprietors or injured parties, of the actual or contemplated importation of articles prohibited importa- tion by this Act, and which infringe the rights of such copyright proprietors or injured parties. UNITED STATES CODE, 1909 481 Sec. 34. That all actions, suits, or proceedings arising Jurisdiction under the copyright laws of the United States shall be origi- 0* courts in nally cognizable by the circuit courts of the United States, <^°Py"6'»* the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Phil- ippine Islands. Sec. 35. That civil actions, suits, or proceedings arising District in under this Act may be instituted in the district of which which suit the defendant or his agent is an inhabitant, or in which he ™^^ .®. , f , ^ ' brought may be found. Sec. 36. Thatanysuchcourtor judge thereof shall have Injunctions power, upon bill in equity filed by any party aggrieved, ™^y ^® to grant injunctions to prevent and restrain the violation ^^^ ^ of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of any- thing forbidden by this Act may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in con- tempt or otherwise by any other court or judge possessing jurisdiction of the defendants. Sec. 37. That the clerk of the court, or judge granting Certified the injunction, shall, when required so to do by the court copy o* hearing the application to enforce said injunction, transmit P^P^''^ ^^^ without delay to said court a certified copy of all the pa- pers in said cause that are on file in his ofifice. Sec. 38. That the orders, judgments, or decrees of any Judgments, court mentioned in section thirty-four of this Act arising ^^'^-i ™ay ^^ under the copyright laws of the United States may be re- '^^^^ed on viewed on appeal or writ of error in the manner and to the ^^^ ^f g^.^j. extent now provided by law for the review of cases deter- mined in said courts, respectively. Sec. 39. That no criminal proceeding shall be main- Wo criminal tained under the provisions of this Act unless the same is proceedings commenced within three years after the cause of action ^^r three years arose. 482 COPYRIGHT Full costs shall be allowed Copyright distinct from property in material object' Transfer of any copy of cop3mghted work permitted Copyright may be as- signed, mort- gaged, or bequeathed Assignment executed in foreign coun- try to be ac- knowledged Assignments to be recorded Register of copyrights to record assignments Sec. 40. That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs. Sec. 41. That the copyright is distinct from the pro- perty in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object; but nothing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained. Sec. 42. That copyright secured under this or previous Acts of the United States may be assigned, granted, or mortgaged by an instrument in writing signed by the pro- prietor of the copyright, or may be bequeathed by will. Sec. 43. That every assignment of copyright executed in a foreign country shall be acknowledged by the assignor before a consular officer or secretary of legation of the United States authorized by law to administer oaths or per- form notarial acts. The certificate of such acknowledge- ment under the hand and official seal of such consular offi- cer or secretary of legation shall be prima facie evidence of the execution of the instrument. Sec. 44. That every assignment of copyright shall be recorded in the copyright office within three calendar months after its execution in the United States or within six calendar months after its execution without the limits of the United States, in default of which it shall be void as against any subsequent purchaser or mortgagee for a valu- able consideration, without notice, whose assignment has been duly recorded. Sec. 45. That the register of copyright shall, upon pay- ment of the prescribed fee, record such assignment, and shall return it to the sender with a certificate of record at- tached under seal of the copyright office, and upon the pay- ment of the fee prescribed by this Act he shall furnish to UNITED STATES CODE, 1909 483 any person requesting the same a certified copy thereof under the said seal. Sec. 46. That when an assignment of the copyright in Assignee's a specified book or other work has been recorded the as- name may signee may substitute his name for that of the assignor in ?^ substi- the statutory notice of copyright prescribed by this Act. ^j j^^ notice Sec. 47. That all records and other things relating to coovrieht copyrights required by law to be preserved shall be kept records and preserved in the copyright office, Library of Congress, District of Columbia, and shall be under the control of the register of copyrights, who shall, under the direction and supervision of the Librarian of Congress, perform all the duties relating to the registration of copyrights. Sec. 48. That there shall be appointed by the Librarian Register of of Congress a register of copyrights, at a salary of four copyrights thousand dollars per annum, and one assistant register of ^nd assistant copyrights, at a salary of three thousand dollars per an- copyrjelits num, who shall have authority during the absence of the register of copyrights to attach the copyright office seal to all papers issued from the said office and to sign such certi- ficates and other papers as may be necessary. There shall also be appointed by the Librarian such subordinate assist- ants to the register as may from time to time be authorized by law. Sec. 49. That the register of copyrights shall make Register of daily deposits in some bank in the District of Columbia, copyriglits to designated for this purpose by the Secretary of the Treas- ®^°^' /^ ury as a national depository, of all moneys received to be fees applied as copyright fees, and shall make weekly deposits with the Secretary of the Treasury, in such manner as the latter shall direct, of all copyright fees actually applied under the provisions of this Act, and annual deposits of sums received which it has not been possible to apply as copyright fees or to return to the remitters, and shall also make monthly reports to the Secretary of the Treasury and Shall make to the Librarian of Congress of the applied copyright fees niontlily re- fer each calendar month, together with a statement of all ^ remittances received, trust funds on hand, moneys re- funded, and unapplied balances. 484 COPYRIGHT Bond of register of copyrights Annual report of register of copyrights Seal of copy- right office Rules for the registration of copyrights Record books Entry of copyright Certificate of registration Certificate for boolc to state receipt of affidavit Sec. 50. That the register of copyrights shall give bond to the United States in the sum of twenty thousand dol- lars, in form to be approved by the Solicitor of the Treas- ury and with sureties satisfactory to the Secretary of the Treasury, for the faithful discharge of his duties. Sec. 51. That the register of copyrights shall make an annual report to the Librarian of Congress, to be printed in the annual report on the Library of Congress, of all copy- right business for the previous fiscal year, including the number and kind of works which have been deposited in the copyright ofi&ce during the fiscal year, under the pro- visions of this Act. Sec. 52. That the seal provided under the Act of July eighth, eighteen hundred and seventy, and at present used in the copyright office, shall continue to be the seal thereof, and by it all papers issued from the copyright office requir- ing authentication shall be authenticated. Sec. 53. That, subject to the approval of the Librarian of Congress, the register of copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this Act. Sec. 54. That the register of copyrights shall provide and keep such record books in the copyright office as are required to carry out the provisions of this Act, and when- ever deposit has been made in the copyright office of a copy of any work under the provisions of this Act he shall make entry thereof. Sec. 55. That in the case of each entry the person re- corded as the claimant of the copyright shall be entitled to a certificate of registration under seal of the copyright office, to contain his name and address, the title of the work upon which copyright is claimed, the date of the deposit of the copies of such work, and such marks as to class desig- nation and entry number as shall fully identify the entry. In the case of a book the certificate shall also state the re- ceipt of the affidavit as provided by section sixteen of this Act, and the date of the completion of the printing, or the date of the publication of the book, as stated in the said affidavit. The register of copyrights shall prepare a printed UNITED STATES CODE, 1909 485 form for the said certificate, to be filled out in each case as above provided for, which certificate, sealed with the seal of the copyright office, shall, upon payment of the pre- scribed fee, be given to any person making application for the same, and the said certificate shall be admitted in any court as prima facie evidence of the facts stated therein. In addition to such certificate the register of copyrights shall furnish, upon request, without additional fee, a re- ceipt for the copies of the work deposited to complete the registration. Sec. 56. That the register of copyrights shall fully in- dex all copyright registrations and assignments and shall print at periodic intervals a catalogue of the titles of arti- cles deposited and registered for copyright, together with suitable indexes, and at stated intervals shall print com- plete and indexed catalogues for each class of copyright entries, and may thereupon, if expedient, destroy the ori- ginal manuscript catalogue cards containing the titles in- cluded in such printed volumes and representing the entries made during such intervals. The current catalogues of copyright entries and the index volumes herein provided for shall be admitted in any court as prima facie evidence of the facts stated therein as regards any copyright regis- tration. Sec. 57. That the said printed current catalogues as they are issued shall be promptly distributed by the copy- right office to the collectors of customs of the United States and to the postmasters of all exchange offices of receipt of foreign mails, in accordance with revised lists of such col- lectors of customs and postmasters prepared by the Secre- tary of the Treasury and the Postmaster-General, and they shall also be furnished to all parties desiring them at a price to be determined by the register of copyrights, not exceed- ing five dollars per annum for the complete catalogue of copyright entries and not exceeding one dollar per annum for the catalogues issued during the year for any one class of subjects. The consolidated catalogues and indexes shall also be supplied to all persons ordering them at such prices as may be determined to be reasonable, and all subscrip- Certificate may be given to any person Receipt for copies deposited Index to copyright registrations Catalogue of copyright entries Catalogue cards Catalogues and indexes prima facie evidence Distribution of catalogue of copyright entries Subscription price 486 COPYRIGHT Superintend- ent of Documents to receive subscriptions Record books, etc., open to inspection Copies may be taken of entries in record books Disposition of copyriglit deposits Preservation of copyriglit deposits Disposal of copyright deposits tions for the catalogues shall be received by the Superinten- dent of Public Documents, who shall forward the said pub- lications; and the moneys thus received shall be paid into the Treasury of the United States and accounted for under such laws and Treasury regulations as shall be in force at the time. Sec. 58. That the record books of the copyright office, together with the indexes to such record books, and all works deposited and retained in the copyright office, shall be open to public inspection ; and copies may be taken of the copyright entries actually made in such record books, subject to such safeguards and regulations as shall be pre- scribed by the register of copyrights and approved by the Librarian of Congress. Sec. 59. That of the articles deposited in the copyright office under the provisions of the copyright laws of the United States or of this Act, the Librarian of Congress shall determine what books and other articles shall be trans- ferred to the permanent collections of the Library of Con- gress, including the law library, and what other books or articles shall be placed in the reserve collections of the Li- brary of Congress for sale or exchange, or be transferred to other governmental libraries in the District of Columbia for use therein. Sec. 60. That of any articles undisposed of as above provided, together with all titles and correspondence re- lating thereto, the Librarian of Congress and the register of copyrights jointly shall, at suitable intervals, determine what of these received during any period of years it is de- sirable or useful to preserve in the permanent files of the copyright office, and, after due notice as hereinafter pro- vided, may within their discretion cause the remaining arti- cles and other things to be destroyed : Provided, That there shall be printed in the Catalogue of Copyright Entries from February to November, inclusive, a statement of the years of receipt of such articles and a notice to permit any author, copyright proprietor, or other lawful claimant to claim and remove before the expiration of the month of December of that year anything found which UNITED STATES CODE, 1909 487 relates to any of his productions deposited or registered for copyright within the period of years stated, not reserved or disposed of as provided for in this Act: And provided fur- Manuscript ther. That no manuscript of an unpublished work shall be copies to be destroyed during its term of copyright without specific no- Preserved tice to the copyright proprietor of record, permitting him to claim and remove it. Sec. 61. That the register of copyrights shall receive. Fees and the persons to whom the services designated are ren- dered shall pay, the following fees: For the registration of Fee for any work subject to copyright, deposited under the pro- registration visions of this Act, one dollar, which sum is to include a certificate of registration under seal : Provided, That in the Fee for case of photographs the fee shall be fifty cents where a cer- certificate tificate is not demanded. For every additional certificate of registration made, fifty cents. For recording and certi- Fee for f ying any instrument of writing for the assignment of copy- recording right, or any such license specified in section one, subsec- assignment tion (e), or for any copy of such assignment or license, duly Fee for copy certified, if not over three hundred words in length, one of assign- dollar ; if more than three hundred and less than one, thou- ™®'** sand words in length, two dollars; if more than one thou- sand words in length, one dollar additional for each one thousand words or fraction thereof over three hundred words. For recording the notice of user or acquiescence Fee for re- specified in section one, subsection (e), twenty-five cents cording no- for each notice if not over fifty words, and an additional ^'^ °^ '•®®' twenty-five cents for each additional one hundred words. For comparing any copy of an assignment with the record Fee for of such document in the copyright office and certifying the comparing same under seal, one dollar. For recording the extension assignment or renewal of copyright provided for in sections twenty- ^®® *°f three and twenty-four of this Act, fifty cents. For record- '®'^^^'*™S ing the transfer of the proprietorship of copyrighted arti- pgg f^^ cles, ten cents for each title of a book or other article, in recording addition to the fee prescribed for recording the instrument transfer of assignment. For any requested search of copyright office Fee for records, indexes, or deposits, fifty cents for each full hour search of time consumed in making such search: Provided, That 488 COPYRIGHT Only one registration required Definitions: "date of publication " "Author •' Repealing clause Date of en- forcement only one registration at one fee shall be required in the case of several volumes of the same book deposited at the same time. Sec. 62. That in the interpretation and construction of this Act "the date of publication" shall in the case of a work of which copies are reproduced for sale or distribu- tion be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority, and the word "author" shall include an em- ployer in the case of works made for hire. Sec. 63. That all laws or parts of laws in conflict with the provisions of this Act are hereby repealed, but nothing in this Act shall effect causes of action for infringement of copyright heretofore committed now pending in courts of the United States, or which may hereafter be instituted; but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law. Sec. 64. That this Act shall go into effect on the first day of July, nineteen hundred and nine. Approved, March 4, 1909. 2. PRESIDENT S PROCLAMATIONS By the President of the United States of America A Proclamation Whereas it is provided by the act of Congress of March 4, 1909, entitled "An act to amend and consolidate the acts respecting copyright," that the benefits of said act, except- ing the benefits under section i (e) thereof, as to which spe- cial conditions are imposed, shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only upon certain conditions set forth in section 8 of said act, to wit: (a) When an alien author or proprietor shall be domi- ciled within the United States at the time of the first pub- lication of his work : or (b) When the foreign state or nation of which such au- thor or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protec- tion substantially equal to the protection secured to such foreign author under this act or by treaty ; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto: And whereas it is also provided by said section that "The existence of the reciprocal conditions aforesaid shall be de- termined by the President of the United States, by procla- mation made from time to time as the purposes of this act may require": And whereas satisfactory evidence has been received that in Austria, Belgium, Chile, Costa Rica, Cuba, Den- mark, France, Germany, Great Britain and her posses- sions, Italy, Mexico, the Netherlands and possessions, Norway, Portugal, Spain, and Switzerland the law per- 490 COPYRIGHT mits and since July i, 1909, has permitted to citizens of the United States the benefit of copyright on substan- tially the same basis as to citizens of those countries : Now, therefore, I, William Howard Taft, President of the United States of America, do declare and proclaim that one of the alternative conditions specified in section 8, of the act of March 4, 1909, is now fulfilled, and since July i, 1909, has continuously been fulfilled, in respect to the citi- zens or subjects of Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Italy, Mexico, the Netherlands and posses- sions, Norway, Portugal, Spain, and Switzerland, and that the citizens or subjects of the aforementioned countries are and since July i, 1909, have been entitled to all the bene- fits of the said act other than the benefits under section i (e) thereof, as to which the inquiry is still pending. In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington this ninth day of April, in the year of our Lord one thousand nine hun- dred and ten, and of the Independence of the [seal.] United States of America the one hundred and thirty-fourth. Wm. H. Taft. By the President: P. C. Knox, Secretary of State Luxemburg was added by proclamation of June 29, 1910, and Sweden, May 26, 1911, to go into effect June i, 1911. A proclamation accepting reciprocal relations with Ger- many as to mechanical music reproductions was issued December 8, 1910. Similar proclamations under date of June 14, 191 1, covered Belgium, Luxemburg and Norway. 3- UNITED STATES SUPREME COURT RULES Rules adopted by the Supreme Court of the United States for Practice and Procedure under Section 25 OF AN Act to amend and consolidate the Acts RESPECTING COPYRIGHT, APPROVED MARCH 4, I9O9. To GO INTO EFFECT JUX,Y I, I9O9. 1. The existing rules of equity practice, so far as they may be applicable, shall be enforced in proceedings insti- tuted under section twenty-five (25) of the act of March fourth, nineteen hundred and nine, entitled "An act to amend and consolidate the acts respecting copyright." 2. A copy of the alleged infringement of copyright, if act- ually made, and a copy of the work alleged to be infringed, should accompany the petition, or its absence be explained ; except in cases of alleged infringement by the public per- formance of dramatic and dramatico-musical composi- tions, the delivery of lectures, sermons, addresses, and so forth, the infringement of copyright upon sculptures and other similar works and in any case where it is not feasible. 3. Upon the institution of any action, suit, or proceed- ing, or at any time thereafter, and before the entry of final judgment or decree therein, the plaintiff or complainant, or his authorized agent or attorney, may file with the clerk of any court given jurisdiction under section 34 of the act of March 4, 1909, an affidavit stating upon the best of his knowledge, information, and belief, the number and loca- tion, as near as may be, of the alleged infringing copies, records, plates, molds, matrices, etc., or other means for making the copies alleged to infringe the copyright, and the value of the same, and with such affidavit shall file with the clerk a bond executed by at least two sureties and ap- proved by the court or a commissioner thereof. 492 COPYRIGHT 4. Such bond shall bind the sureties in a specified sum, to be fixed by the court, but not less than twice the reason- able value of such infringing copies, plates, records, molds, matrices, or other means for making such infringing copies, and be conditioned for the prompt prosecution of the ac- tion, suit or proceeding; for the return of said articles to the defendant, if they or any of them are adjudged not to be infringements, or if the action abates, or is discontinued before they are returned to the defendant; and for the pay- ment to the defendant of any damages which the court may award to him against the plaintiff or complainant. Upon the filing of said affidavit and bond, and the approval of said bond, the clerk shall issue a writ directed to the mar- shal of the district where the said infringing copies, plates, records, molds, matrices, etc., or other means of making such infringing copies shall be stated in said affidavit to be located, and generally to any marshal of the United States, directing the said marshal to forthwith seize and hold the same subject to the order of the court issuing said writ, or of the court of the district in which the seizure shall be made. 5. The marshal shall thereupon seize said articles or any smaller or larger part thereof he may then or thereafter find, using such force as may be reasonably necessary in the premises, and serve on the defendant a copy of the affi- davit, writ, and bond by delivering the same to him person- ally, if he can be found within the district, of if he can not be found, to his agent, if any, or to the person from whose possession the articles are taken, or if the owner, agent, or such person can not be found within the district by leaving said copy at the usual place of abode of such owner or agent with a person of suitable age and discretion, or at the place where said articles are found, and shall make imme- diate return of such seizure, or attempted seizure, to the court. He shall also attach to said articles a tag or label stating the fact of such seizure and warning all persons from in any manner interfering therewith. SUPREME COURT RULES 493 6. A marshal who has seized alleged infringing articles, shall retain them in his possession, keeping them in a secure place, subject to the order of the court. 7. Within three days after the articles are seized, and a copy of the affidavit, writ and bond are served as hereinbe- fore provided, the defendant shall serve upon the clerk a notice that he excepts to the amount of the penalty of the bond, or to the sureties of the plaintiff or complainant, or both, otherwise he shall be deemed to have waived all ob- jection to the amount of the penalty of the bond and the sufficiency of the sureties thereon. If the court sustain the exceptions it may order a new bond to be executed by the plaintiff or complainant, or in default thereof within a time to be named by the court, the property to be re- turned to the defendant. 8. Within ten days after service of such notice, the attor- ney of the plaintiff or complainant shall serve upon the de- fendant or his attorney a notice of the justification of the sureties, and said sureties shall justify before the court or a judge thereof at the time therein stated. 9. The defendant, if he does not except to the amount of the penalty of the bond or the sufficiency of the sureties of the plaintiff or complainant, may make application to the court for the return to him of the articles seized, upon filing an affidavit stating all material facts and circumstances tending to show that the articles seized are not infringing copies, records, plates, molds, matrices, or means for mak- ing the copies alleged to infringe the copyright. 10. Thereupon the court in its discretion, and after such hearing as it may direct, may order such return upon the filing by the defendant of a bond executed by at least two sureties, binding them in a specified sum to be fixed in the discretion of the court, and conditioned for the delivery of said specified articles to abide the order of the court. The 494 COPYRIGHT plaintiff or complainant may require such sureties to justify within ten days of the filing of such bond. 11. Uponthegrantingof such application and the justifi- cation of the sureties on the bond, the marshal shall imme- diately deliver the articles seized to the defendant. 12. Any service required to be performed by any marshal may be performed by any deputy of such marshal. 13. For services in cases arising under this section, the marshal shall be entitled to the same fees as are allowed for similar services in other cases. 4- UNITED STATES COPYRIGHT OFFICE REGtTLATIONS Rules and Regulations for the Registration of Claims to Copyright 1. Copyright under the act of Congress entitled: "An Copyright act to amend and consolidate the acts respecting copy- under act right," approved March 4, 1909, is ordinarily secured by printing and publishing a copyrightable work with a no- tice of claim in the form prescribed by the statute. Regis- tration can only be made after such publication, but the statute expressly provides, in certain cases, for registration of manuscript works. WHO MAY secure COPYRIGHT 2. The persons entitled by the act to copyright protec- Persons tion for their works are : entitled to (i) The author of the work, if he is: copyright (a) A citizen of the United States, or (&) A resident alien domiciled in the United States at the time of the first publication of his work, or (c) A citizen or subject of any country which grants either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substan- tially the same basis as to its own citizens. The existence of reciprocal copyright conditions is determined by presi- dential proclamation. (2) The proprietor of a work. The word " proprietor " is here used to indicate a person who derives his title to the work from the author. If the author of the work should be a person who could not himself claim the benefit of the copyright act, the proprietor can not claim it. (3) The executors, administrators or assigns of the above- mentioned author or proprietor. 3. After the publication of any work entitled to copy- Copyright right, the claimant of copyright should register this claim registration in the Copyright Office. An action for infringement of 496 COPYRIGHT Works subject to copyright Blank books, etc., not copyrightable copyright can not be maintained in court until the provi- sions with respect to the deposit of copies and registration of such work shall have been complied with. A certificate of registration is issued to the applicant and duplicates thereof may be obtained on payment of the stat- utory fee of 50 cents. SUBJECT-MATTER OF COPYRIGHT 4. The act provides that no copyright shall subsist in the original text of any work published prior to July i, 1909, which has not been already copyrighted in the United States (sec. 7). Section 5 of the act divides the works for which copy- right may be secured into eleven classes, as follows: (a) Books. — This term includes all printed literary works (except dramatic compositions) whether published in the ordinary shape of a book or pamphlet, or printed as a leaflet, card, or single page. The term "book" as used in the law includes tabulated forms of information, fre- quently called charts; tables of figures shoiving the results of mathematical computations, such as logarithmic tables, interest, cost, and wage tables, etc. ; single poems, and the words of a song when printed and published without music; librettos; descriptions of moving pictures or spectacles; encyclopaedias; catalogues; directories; gazetteers and sim- ilar compilations; circulars or folders containing informa- tion in the form of reading matter other than mere lists of articles, names and addresses, and literary contributions to periodicals or newspapers. 5. The term "book" can not be applied to — Blank books for use in business or in carrying out any system of transacting affairs, such as record books, account books, memorandum books, diaries or journals, bank depo- sit and check books; forms of contracts or leases which do not contain original copyrightable matter ; coupons ; forms for use in commercial, legal, or financial transactions, which are wholly or partly blank and whose value lies in their usefulness and not in their merit as literary compositions. Directions on scales, or dials, or mathematical or other COPYRIGHT OFFICE REGULATIONS 497 instruments; puzzles; games; rebuses; labels; wrappers; formulae on boxes, bottles, and other receptacles of articles for sale or meant to accompany such articles. Advertisements or catalogues which merely set forth the names, prices, and places where articles are for sale. Prefaces or other introductory matter to works not themselves entitled to copyright protection, such as blank books. Calendars are not capable of registration as such, but if they contain copyrightable reading matter or pictures they may be registered either as "books" or as "prints" according to the nature of the copyrightable matter. 6. (jb) Periodicals. — This term includes newspapers, Periodicals magazines, reviews, and serial publications appearing oft- ener than once a year; bulletins or proceedings of socie- ties, etc., which appear regularly at intervals of less than a year; and, generally, periodical publications which would be registered as second-class matter at the post-office. 7. (c) Lectures, sermons, addresses, or similar produc- Lectures, tions, prepared for oral delivery. etc. 8. {d) Dramatic and dramatico-musical compositions. Dramatic such as dramas, comedies, operas, operettas and similar composi- works. *»°"s, etc. The designation "dramatic composition" does not in- clude the following: Dances, ballets, or other choregraphic works; tableaux and moving picture shows; stage settings or mechanical devices by which dramatic effects are pro- duced, or "stage business"; animal shows, sleight-of-hand performances, acrobatic or circus tricks of any kind; de- scriptions of moving pictures or of settings for the produc- tion of moving pictures. (These, however, when printed and published, are registrable as "books.") 9. Dramatico-musical compositions include principally Dramatico- operas, operettas, and musical comedies, or similar pro- musical com- ductions which are to be acted as well as sung. positions, Ordinary songs, even when intended to be sung from the ^ ''■ stage in a dramatic manner, or separately published songs sones from operas and operettas, should be registered as musical separately compositions, not dramatico-musical compositions. published 498 COPYRIGHT Musical compositions Maps Works of art Toys, games, etc. Reproduc- tions of works of art Drawings or plastic works Ftiotograplis 10. (e) Musical compositions, including other vocal and all instrumental compositions, with or without words. But when the text is printed alone it should be registered as a "book," not as a "musical composition." "Adaptations" and "arrangements" may be registered as "new works" under the provisions of section 6. Mere transpositions into different keys are not expressly pro- vided for in the copyright act; but if published with copy- right notice and copies are deposited with application, registration will be made. 11. (/) Maps. — This term includes all cartographical works, such as terrestrial maps, plats, marine charts, star maps, but not diagrams, astrological charts, landscapes, or drawings of imaginary regions which do not have a real existence. 12. (g) Works of art. — This term includes all works be- longing fairly to the so-called fine arts. (Paintings, draw- ings, and sculpture.) Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented. No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, em- broideries, garments, laces, woven fabrics, or any similar articles. 13. (h) Reproductions of works of art. — This term refers to such reproductions (engravings, woodcuts, etchings, casts, etc.) as contain in themselves an artistic element dis- tinct from that of the original work of art which has been reproduced. 14. (i) Drawings or plastic works of a scientific or tech- nical character. — This term includes diagrams or models illustrating scientific or technical works, architects' plans, designs for engineering work, etc. 15- ij) Photographs. — This term covers all positive prints from photographic negatives, including those from moving-picture films (the entire series being counted as a single photograph), but not photogravures, half tones, and other photo-engravings. copyrightable COPYRIGHT OFFICE REGULATIONS 499 16. (A) Prints and pictorial illustrations. — This term Prints and comprises all printed pictures not included in the various pictorial other classes enumerated above. illustrations Articles of utilitarian purpose do not become capable of Articles for copyright registration because they consist in part of pic- use not tures which in themselves are copyrightable, e. g., puzzles, games, rebuses, badges, buttons, buckles, pins, novelties of every description, or similar articles. Postal cards can not be copyrighted as such. The pic- tures thereon may be registered as " prints or pictorial illus- trations" or as "photographs." Text matter on a postal card may be of such a character that it may be registered as a "book." Mere ornamental scrolls, combinations of lines and col- ors, decorative borders, and similar designs, or ornamental letters or forms of type are not included in the designation "prints and pictorial illustrations." Trademarks can not be copyrighted nor registered in the Copyright Office. HOW TO SECURE REGISTRATION 17. Copyright registration may be secured for: (i) Unpublished works. (2) Published works. Registrable works UNPUBLISHED WORKS Unpublished works are such as have not at the time of registration been printed or reproduced in copies for sale, or been publicly distributed. They include: (a) Lectures, sermons, addresses, or similar productions for oral deliv- ery; (b) dramatic and musical compositions; (c) photo- graphic prints; (d) works of art (paintings, drawings, and sculpture), and (e) plastic works. In order to secure copyright in such unpublished works, the following steps are necessary: 18. (i) In the case of lectures, sermons, addresses, and dramatic and musical compositions, deposit one type- written or manuscript copy of the work. This copy should be in convenient form, clean and legi- Registration of unpub- lished works 500 COPYRIGHT Unpublished photograph Photograph of work of art Reproduc- tion of unpublished work ble, the leaves securely fastened together, and should bear the title of the work corresponding to that given in the ap- plication. / The entire work in each case should be deposited. It is not sufificient to deposit a mere outline or epitome, or, in the case of a play, a mere scenario or a scenario with the synopsis of the dialogue. 19. (2) In the case of photographs, deposit one copy of a positive print of the work. (Photo-engravings or photo- gravures are not photographs within the meaning of this provision.) 20. (3) In the case of works of art, models or designs for works of art, or drawings or plastic works of a scientific or technical character, deposit a photographic reproduc- tion. In each case the deposited article should be accompanied by an application for registration and a money order for the amount of the statutory fee. 21. Any work which has been registered as an unpub- lished work, if reproduced in copies for sale or distribution, must be deposited a second time (two copies, accompanied by an application for registration and the statutory fee) in the same manner as is required in the case of works pub- lished in the first place. PUBLISHED WORKS DEPOSIT OF COPIES Deposit of 22. After publication of the work with the copyright no- copies tice' inscribed, two complete copies of the best edition of the work must be sent to the Copyright Office, with a proper application for registration correctly filled out and a money order for the amount of the legal fee. The statute requires that the deposit of the copyright work shall be made "promptly," which has been defined as "without unnecessary delay." It is not essential, how- ever, that the deposit be made on the very day of publica- tion. 23. Published works are such as are printed or otherwise COPYRIGHT OFFICE REGULATIONS 501 produced and " placed on sale, sold, or publicly distributed " Definition of (i. e., so that all persons who desire copies may obtain them "published without restriction or condition other than that imposed ^**'^ by the copyright law). Representation on the stage of a play is not a publication of it, nor is the public performance of a musical composition publication. Works intended for sale or general distribution must first be printed with the statutory form of copyright notice inscribed on every copy intended to be circulated. NOTICE OF COPYRIGHT 24. The ordinary form of copyright notice for books. Form of periodicals, dramatic and musical compositions is "Copy- notice right, 19 — (the year of publication), by A. B. (the name of the claimant)." The name of the claimant printed in the notice should be the real name of a living person, or his trade name if he always uses one (but not a pseudonym or pen name) , or the name of the firm or corporation claiming to own the copyright. The copyright notice should not be printed in the name of one person for the benefit of another. The beneficiary's name should be printed in such cases. 25. In the case of maps, photographs, reproductions of Short form works of art, prints or pictorial illustrations, works of art, of notice models or designs for works of art, and plastic works of a scientific or technical character, the notice may consist of the letter C, inclosed within a circle, thus @, accompa- nied with the initials, monogram, mark, or symbol of the copyright proprietor. But in such cases the name itself of the copyright proprietor must appear on some accessible portion of the work, or on the mount of the picture or map, or on the margin, back, or permanent base or pedestal of the work. 26. The prescribed notice must be afiSxed to each copy Notice upon of the work published or offered for sale in the United each copy States. But no notice is required in the case of foreign books printed abroad seeking ad interim protection in the United States, as provided in section 21 of the copyright act. 502 COPYRIGHT Works produced in UnitedStates Books by foreign authors Books print- ed abroad AMERICAN MANUFACTURE OF COPYRIGHT BOOKS 27. The following works must be manufactured in the United States in order to secure copyright: (a) All "books" in the English language and books in any language by a citizen or domiciled resident of the United States must be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein or, if the text of such books be produced by lithographic process or photo-engraving process, then by a process wholly performed within the limits of the United States; and the printing of the text and binding of the book must be performed within the limits of the United States. (6) All illustrations within a book produced by litho- graphic process or photo-engraving process and all sepa- rate lithographs or photo-engravings must be produced by lithographic or photo-engraving process wholly performed within the limits of the United States, except when the subjects represented in such illustrations in a book or such separate lithographs or photo-engravings "are located in a foreign country and illustrate a scientific work or repro- duce a work of art." 28. Books by foreign authors in any language other than English are not required to be printed in the United States. In the case of books printed abroad in the English lan- guage an ad interim term of copyright of thirty days from registration made in the Copyright Office within thirty days after publication abroad may be secured ; but in order to extend the copyright to the full term of protection, an edition of the work must be published in the United States within the thirty days ad interim term, printed or produced within the limits of the United States as required in section 15 of the copyright act. APPLICATION FOR REGISTRATION Application 29. The application for copyright registration required f"'. , to be sent with each work (see No. 20) must state the fol- registration losing facts, without which no registration can be made: COPYRIGHT OFFICE REGULATIONS 503 (i) The name and address of the claimant of copyright. (2) The nationality of the author of the work. (3) The title of the work. (4) The name and address of person to whom certificate is to be sent. (5) In the case of all published works the actual date (year, month, and day) when the work was published. 30. In addition, it is desirable that the application Name of should state for record the name of the author. If, how- author ever, the work is published anonymously or under a pseu- donym and it is not desired to place on record the real name of the author, this may be omitted. In the case of works made for hire, the employer may be given as the author. By the nationality of the author is meant citizenship, not Nationality race; a person naturalized in the United States should be of author described as an American. An author, a citizen of a foreign country having no copyright relations with the United States, may secure copyright in this country, if at the time of publication of his work he is a permanent resident of the United States. The fact of such permanent residence in the United States should be expressly stated in the applica- tion. Care should be taken that the title of the work, the name of the author, and the name of the copyright claim- ant should be correctly stated in the application, and that they should agree exactly with the same statements made in the work itself. APPLICATION FORMS 31. The Copyright Office has issued the following appli- Application cation forms, which will be furnished on request, and fornis should be used when applying for copyright registration: A'- Book by citizen or resident of the United States. A^ New ed. New edition of book by citizen or resident of the United States. A^ for. Book by citizen or resident of a foreign country, but manufactured in the United States. A^. Edition printed in the United States of a book originally published abroad in the English language. A' Book by foreign author in foreign language. 504 COPYRIGHT A*- Ad interim. Book published abroad in the English language. A'- Contribution to a newspaper or periodical. B'. Periodical. For registration of single issue. B^- Periodical. General application and deposit. C. Lecture, sermon, or address. D'. Published dramatic composition. D''. Dramatic composition not reproduced for sale. D'. Dramatico-musical composition. E^ Published musical composition. E^. Musical composition not reproduced for sale. F. Published map. G. Work of art (painting, drawing, or sculpture); or model or design for a work of art. H. Reproduction of a work of art. I. Drawing or plastic work of a scientific or technical character. J^ Photograph published for sale. P- Photograph not reproduced for sale. K. Print or pictorial illustration. AFFIDAVIT OF MANUFACTURE Affidavit for 32. In the case of books by American authors and all book books in the English language the application must be accompanied by an affidavit, showing the following facts: (i) That the copies deposited have been printed from type set within the limits of the United States; or from plates made within the limits of the United States from type set therein ; or if the text be produced by lithographic process or photo-engraving process, that such process was wholly performed within the limits of the United States. Stating, in either case, the place and the establishment where such work was done. (2) That the printing of the text has been performed within the limits of the United States, showing the place and the name of the establishment doing the work. (3) That the binding of such books has been performed within the Umits of the United States, showing the place COPYRIGHT OFFICE REGULATIONS 505 and the name of the establishment where the work was done. This can be omitted if the work is unbound. (4) That the completion of the printing of said book was on a stated day, or that the book was published on a given date. Section 62 of the copyright act defines the date of pub- Date of lication as "the earliest date when copies of the first publication authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority." 33. The affidavit may be made before any officer au- Affidavit thorized to administer oaths within the United States who ™ust be can affix his official seal to the instrument. ^^^^ ^^^ The applicant and the officer administering the oath for such affidavit are specially requested to make sure that the instrument is properly executed, so as to avoid the delay of having it returned for amendment. Experience shows Errors by that among the common errors made by applicants are the applicants following : Failure to write in the "venue," that is, the name of the county and State, and to make sure that the notary's state- ment agrees. Reciting a corporation or partnership as affiant. Oaths can be taken only by individuals. Failure to state in what capacity the affiant takes the oath, whether as claimant, agent of the claimant, or printer. Where a corporation or firm is the claimant, the affiant should swear as agent. Failure to state the exact date of publication or comple- tion of printing. The month alone is insufficient. Failure to sign the affidavit. The signature should cor- respond exactly with the name of the affiant stated at the beginning. Corporation or firm names must not appear in this place. Failure to obtain signature of the notary after swearing to the contents. Failure to obtain the seal of the notary. Swearing before an officer not authorized to act in the place stated in the venue. 506 COPYRIGHT By whom Variance between names and dates as stated in the affi- davit and the application. The affidavit must never be made before the day of pub- lication. 34. The affidavit may be made by: (i) The person aflBdavit may claiming the copyright ; or (2) his duly authorized agent or e made representative residing in the United States ; or (3) the printer who has printed the book. The person making the affidavit must state in which of the above-mentioned capacities he does so. 35. In the case of a foreign author applying for a book in a language other than English, no affidavit is required, as such books are not subject to the manufacturing clause. In the case of a foreign author applying for a book in the English language, the same affidavit must be made as in that of an American author, except where a book is de- posited for ad interim protection under section 21. In such cases the affidavit must be filed when the ad interim copy- right is sought to be extended to the full term. The affidavit is only required for BOOKS. Book in foreign language Periodicals Contribu- tions to periodicals PERIODICALS (form B) 36. Application should be made in the same manner as for books, depositing two copies, but no affidavit is re- quired. Separate registration is necessary for each number of the periodical published with a notice of copyright, and can only be made after publication. It is not possible to regis- ter the title of the periodical in advance of publication. CONTRIBUTIONS TO PERIODICALS (fORM A*) 37. If special registration is requested for any contribu- tion to a periodical, one copy of the number of the periodi- cal in which the contribution appears should be deposited promptly after publication. The entire copy should be sent; sending a mere clipping or a page containing the contribution does not comply with the statute. The date of publication of a periodical is not necessarily COPYRIGHT OFFICE REGULATIONS 507 the date stated on the title-page. The application should state the day on which the issue is "first placed on sale, sold, or publicly distributed," which may be earlier or later than the date printed on the title-page. AD INTERIM APPLICATIONS (fORM A*) 38. Where a book in the English language has been Ad interim printed abroad, an ad interim copyright may be secured by copyright depositing in the Copyright Office one complete copy of the foreign edition, with an application containing a request for the reservation and a money order for f i. Such appli- cations should state: (i) Name and nationality of the au- thor; (2) Name and nationality of the copyright claimant; (3) Exact date of original publication abroad. The deposit must be made within thirty days from pub- lication abroad. Whenever, within the thirty days' period of ad interim protection, an edition manufactured in the United States is published, and two copies are deposited, the copyright claim therein may be registered the same as any other book (Form A^), MAILING APPLICATIONS AND COPIES 39. All mail matter intended for the Copyright Office Address of should be addressed to the "Register of Copyrights, Li- mail matter brary of Congress, Washington, D. C." No letters dealing with copyright matters should be addressed to individuals in the office. Copyright matter designed for deposit in the Copyright Office will be transmitted by the postmaster free of charge when requested. The postmaster will also, when requested, give a receipt for matter so delivered to him for transmis- sion. No franking label is issued by the Copyright Office for this purpose. FEES 40. The fee required to be paid for copyright registra- Copyright tion is $1, except that in case of photographs it is only 50 ^^^^ cents when no certificate of registration is desired. 5o8 COPYRIGHT Remittances All remittances to the Copyright Office should be sent by money order or bank draft. Postage stamps should not be sent for fees or postage. Checks can not be accepted un- less certified. Coin or currency inclosed in letter or pack- ages if sent will be at the remitter's risk. Publishers may for their own convenience deposit in the Copyright Office a sum of money in advance against which each registration will be charged. ASSIGNMENTS OF COPYRIGHT Assignments 41- When a copyright has been assigned the instrument of copyright in writing signed by the proprietor of the copyright may be filed in this office for record within six calendar months after its execution without the limits of the United States or three calendar months within the United States. After having been recorded the original assignment will be returned to the sender with a sealed certificate of record attached. Fee for re- 42. The fee for recording and certifying an assignment cording as- is $i up to 300 words; $2 from 300 to 1, 000 words; and an- signment other dollar for each additional thousand words or fraction thereof over 300 words. 43. After the assignment has been duly recorded, the assignee may substitute his name for that of the assignor in the copyright notice on the work assigned. Such sub- stitution or transfer of ownership will be indexed in this office upon request, at a cost of 10 cents for each work as- signed. NOTICE OF USER OF MUSICAL COMPOSITIONS 44. Whenever the owner of the copyright in a musical composition uses such music in phonographs himself or per- mits anyone else to do so, he must send a notice of such use by him or by any other person to the Copyright Office to be recorded. sence of ' ^5' Whenever any person in the absence of a license in- license tends to use a copyrighted musical composition upon the ITame of as- signee in claim Notice of user of music COPYRIGHT OFFICE REGULATIONS 509 parts of instruments serving to reproduce the same me- chanically, the act requires that he shall serve notice of such intention upon the copyright proprietor and must also send a duplicate of such notice to the Copyright Office. APPLICATION FOR THE RENEWAL OR EXTENSION OF SUBSISTING COPYRIGHTS 46. Application for the renewal or extension of a sub- Renewals sisting copyright (except copyright of a composite work) and exten- may be filed within one year prior to the expiration of the ^'""^ existing term by : (i) The author of the work if still living; (2) The widow, widower, or children of the author if the author is not living. r. (3) The author's executor, if such author, widow, wid- ower, or children be not living; (4) If the author, widow, widower, and children are all dead, and the author left no will, then the next of kin. 47. If the work be a composite work upon which copy- Renewal for right was originally secured by the proprietor thereof, then composite such proprietor is entitled to the privilege of renewal and ""''^ extension. 48. The fee for the recording of the renewal claim is 50 Renewal fee cents. Application for the renewal or extension of copy- right can not be recorded in the name of an assignee nor in that of any person not expressly mentioned in section 24 of the act. SEARCHES 49. Upon application to the Register of Copyrights Searches search of the records, indexes, or deposits will be made for such information as they may contain relative to copy- right claims. Persons desiring searches to be made should state clearly the nature of the work, its title, the name of the claimant of copyright and probable date of entry; in the case of an assignment, the name of the assignor or as- 510 COPYRIGHT signee or both, and the name of the copyright claimant and the title of the music referred to in case of notice of user. Search fee The statutory fee for searches is 50 cents for each full hour of time consumed in making such search. AFFIDAVIT OF AMERICAN MANUFACTURE OF A^ COPYRIGHT BOOK. Fill in the required statements to accord with the facts concerning the book named, and draw pen through such statements as are not intended to be made. State of County of_ Impression seal here -r •*> ( being duly sworn, depose 1 ' ( do solemnly affirm ) ■' " (i) That I am the person claiming copyright in the book named herein. (2) That I am the duly authorized agent or representative residing in the United States of the claimant of copyright in the book named herein. (3) That I am the printer of the book named herein. I further depose and say that, in so far as required by the Act of March 4, 1909, the BOOK ENTITLED of which two copies have been deposited, has been printed by_ _at_ ( type ) from I plates made in the U. S. from type | ^et within the limits of the United States by at ; that the printing of the text of the said book was completed on , 19 ; that the said book was published on , 19 ; that the binding of the said book has been performed within the limits of the United States by at (Signature)- , ( sworn to ) , , , . , , Subscribed and -j affirmed \ ^^^°^^ '"^ *'* °^y °^ ' '9- Place seal at top of page [over] Name of claimant Author and title Leave all above these lines blank 2 c. rec'd- Affidavit rec'd- Cl. A, XXc. No.- $ Cash No — APPLICATION FOR COPYRIGHT — BOOK BY CITIZEN OR RESIDENT OF THE UNITED STATES. Register of Copyrights, Washington, D. C. Date. Of the BOOK named herein, first published after June 30, 1909, TWO complete copies of the best edition published on the date stated herein are hereby deposited to secure copyright, accompanied by the AFFIDAVIT required by section 16 of the Act of March 4, 1909, that the book has been produced in accordance with the manufacturing provisions specified in section 15 of the said Act. $1 (statutory fee for registration) is also inclosed. The copyright is claimed by the undersigned : Name and address of ( " copyright claimant ( _ Author or authors_ If the work is anonymous or pseudonymous, it is not obligatory to state the name of the author. Title of book_ _vol Price, j! . Date of publication exactly' [Date when placed on sale, sold, or publicly distributed.] stated] Send certificate of registration Note. — This form is to be used only for BOOKS by otizbns or residents of the United States A sep- arate application card must be used for each separate work. No registration can be made unless copies are accompanied with a properly filled-out application card, statutory fee, and the required affidavit. E^^ Failure to deposit copies bars suit for infringement and, if deposit of copies is nnt made after " actual notice," involves a fine of f loo, the payment of twice the value of the book, and the copyright becomes VOID. (over) of( 5- U. S. TREASURY AND POST OFFICE REGULATIONS (t. d. 3I754-) Treasury Department, July 17, 1911. Collectors and other officers of the customs: The following sections of the copyright law, approved March 4, 1909, effective July i, 1909, together with the regulations made in pursuance thereof, are published for the information and guidance of customs officers and others concerned : [Here follow sees. 15, 30, 31, 32, 33, 18, as given in pre- ceding pages.] The register of copyrights is required by this act to print at periodic intervals a catalogue of the titles of ar- ticles deposited and registered for copyright, which printed catalogues, as they are issued, will be distributed to the collectors of customs of the United States and to the post- masters of all exchange offices of receipt of foreign mails. regulations Under the copyright act the following articles are pro- hibited importation: 1. Piratical copies of any work copyrighted in the United States. By the term " piratical " is meant the print- ing, reprinting, publishing, copying, or reproducing without authority of the copyright proprietor of any article legally copyrighted and on which the copyright is still in force. 2. Articles bearing a false notice of copyright when there is no existing copyright thereon in the United States. 3. Authorized foreign reprints of books by an American author copyrighted in the United States. 4. Authorized copies of any book copyrighted in the United States not produced in accordance with the manu- facturing provisions of section 15 of the copyright act, ex- cept such as are exempted in the said section 15 and section 31 of the act. 514 COPYRIGHT All books on which there is an existing copyright in the United Staes are prohibited importation unless produced in accordance with the manufacturing provision of section IS, whether copyrighted under this act or previous acts. (Opinion of the Attorney General, T. D. 30136, Nov. 24, 1909.) Copyrighted books produced in accordance with the manufacturing provisions of section i6of the copyright act, when exported and rebound abroad may be admitted to entry on their return to the United States. (Opinion of the Attorney-General, T. D. 30414.) As copyrighted books are required to be printed and bound in the United States, evidence should be required on entry that such books were exported in a bound condition and not as loose sheets, and that the printing and binding were both performed within the limits of the United States. Imported articles found to bear a false notice of copy- right will be detained and forfeiture proceedings instituted as provided in Schedule 32. If satisfactory evidence is not produced to the collector that such imported books were produced in accordance with the manufacturing provisions of section 15, or are ex- empt therefrom, the books will be seized and forfeiture pro- ceedings instituted as provided in section 32. Forfeiture proceedings instituted under the copyright act will be conducted in the same manner as incase of merchan- dise seized for violation of the customs laws, section 32, supra. (Arts. 1266 to 1269, Customs Regulations, 1908.) Authorized editions of copyright books imported through the mails or otherwise in violation of the copyright act may, under customs supervision, be returned to the country of exportation whenever it is shown in a written application to the satisfaction of the Secretary of the Treas- ury that such importation was not due to willful negligence or fraud. (Sec. 32, supra.) In any case in which a customs officer is in doubt as to whether an article is prohibited importation under the copy- right act the articles should be detained and the facts re- ported to the department for instruction. Franklin MacVeagh, Secretary. TREASURY AND P. O. REGULATIONS 515 JOINT REGULATIONS Governing treatment of letters and packages received in the mails from foreign countries containing or supposed to contain articles prohibited importation by the copyright act of March 4, 1909. The "Joint regulations governing the treatment of duti- able and supposed dutiable articles received in the mails from foreign countries " are also applicable in the treatment of articles which contain or which are supposed to contain matter prohibited importation by the copyright act, ex- cept as hereinafter modified ; Unsealed correspondence and packages (registered and unregistered) of all kinds which upon examination prove to contain articles prohibited importation by the copyright act shall be retained by customs officers, who will notify the addressee of the facts of the case. If an application is not made within a reasonable time to the Secretary of the Treasury for permission to return such articles to the coun- try of export, the customs officers shall take appropriate steps to forfeit the articles as provided in section 32 of the copyright act. Sealed articles supposed to contain matter prohibited importation by the copyright act must be appropriately marked to indicate that fact at the exchange office of re- ceipt. The same conditions shall apply in regard to the marking, opening, and disposition of such sealed articles by the addressee or authorized agent as are required in the case of the opening and treatment of sealed "Supposed liable to customs duty" pieces. If the customs officer finds an article contains matter prohibited importation by the copyright act, he shall notify the addressee of the facts through the postmaster at the office of delivery. If an ap- plication is not then made within a reasonable time to the Secretary of the Treasury for permission to return the arti- cle to the country of export, the customs officer shall take appropriate steps to forfeit the matter as provided in sec- tion 32 of the copyright act. Receipt should be taken for articles submitted to cus- toms officials as prohibited importation under the copy- 5i6 COPYRIGHT right law and proper record made on the Post Office rec- ords of the disposition of such articles as are not returned to be disposed of through the mails. Notice of actual or contemplated illegal importations through the mails should be given to the Secretary of the Treasury or the Postmaster General. On receipt of such notices either by the Secretary of the Treasury or the Post- master General instructions will be promptly issued. Franklin MacVeagh, Secretary of the Treasury. Frank H. Hitchcock, Postmaster General. II BRITISH EMPIRE: COPYRIGHT PROVISIONS 6. BRITISH COPYRIGHT ACT, I9II An Act to amend and consolidate the Law relating TO Copyright [i6th December 191 1.] (2 GEORGE V, CHAPTER 46) Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament as- sembled, and by the authority of the same, as follows : — PART I. imperial copyright. Rights. I. — (i) Subject to the provisions of this Act, copy- Copyright right shall subsist throughout the parts of His Majesty's dominions to which this Act extends for the term herein- after mentioned in every original literary dramatic musical and artistic work, if — (a) in the case of a published work, the work was first published within such parts of His Majesty's do- minions as aforesaid ; and (&) in the case of an unpublished work, the author was at the date of the making of the work a British sub- ject or resident within such parts of His Majesty's dominions as aforesaid; but in no other works, except so far as the protection con- ferred by this Act is extended by Orders in Council there- under relating to self-governing dominions to which this Act does not extend and to foreign countries. 5i8 COPYRIGHT (2) For the purposes of this Act, ' ' copyright ' ' means the sole right to produce or reproduce the work or any sub- stantial part thereof in any material form whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public ; if the work is un- published, to publish the work or any substantial part thereof; and shall include the sole right, — (a) to produce, reproduce, perform, or publish any translation of the work; (&) in the case of a dramatic work, to convert it into a novel or other non-dramatic work; (c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise; {d) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered, and to authorize any such acts as aforesaid. (3) For the purposes of this Act, publication, in relation to any work, means the issue of copies of the work to the public, and does not include the performance in public of a dramatic or musical work, the delivery in public of a lec- ture, the exhibition in public of an artistic work, or the construction of an architectural work of art, but, for the purposes of this provision, the issue of photographs and en- gravings of works of sculpture and architectural works of art shall not be deemed to be publication of such works. Infringement 2. — (i) Copyright in a work shall be deemed to be in- of copyright fringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copy- right: Provided that the following acts shall not constitute an infringement of copyright : — (i) Any fair dealing with any work for the purposes of private study, research, criticism, review, or news- paper summary: (ii) Where the author of an artisticwork is not the owner of the copyright therein, the use by the author of BRITISH COPYRIGHT ACT, 191 1 519 any mould, cast, sketch, plan, model, or study made by him for the purpose of the work, provided that he does not thereby repeat or imitate the main design of that work: (iii) The making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situate in a public place or building, or the making or publishing of pciintings, drawings, engravings, or photographs (which are not in the nature of architectural draw- ings or plans) of any architectural work of art: (iv) The publication in a collection, mainly composed of non-copyright matter, bon& fide intended for the use of schools, and so described in the title and in any advertisements issued by the publisher, of short passages from published literary works not themselves published for the use of schools in which copyright subsists: Provided that not more than two of such passages from works by the same author are published by the same publisher within five years, and that the source from which such passages are taken is acknowledged : (v) The publication in a newspaper of a report of a lecture delivered in public, unless the report is prohibited by conspicuous written or printed no- tice affixed before and maintained during the lec- ture at or about the main entrance of the building in which the lecture is given, and, except whilst the building is being used for public worship, in a posi- tion near the lecturer; but nothing in this para- graph shall affect the provisions in paragraph (i) as to newspaper summaries: (vi) The reading or recitation in public by one person of any reasonable extract from any published work. (2) Copyright in a work shall also be deemed to be in- fringed by any person who — (a) sells or lets for hire, or by way of trade exposes or offers for sale or hire; or (b) distributes either for the purposes of trade or to such 520 COPYRIGHT an extent as to affect prejudicially the owner of the copyright; or (c) by way of trade exhibits in pubUc; or {d) imports for sale or hire into any part of His Majesty's dominions to which this Act extends, any work which to his knowledge infringes copyright or would infringe copyright if it had been made within the part of His Majesty's dominions in or into which the sale or hiring, exposure, offering for sale or hire, distribution, exhibition, or importation took place. (3) Copyright in a work shall also be deemed to be in- fringed by any person who for his private profit permits a theatre or other place of entertainment to be used for the performance in public of the work without the consent of the owner of the copyright, unless he was not aware, and had no reasonable ground for suspecting, that the per- formance would be an infringement of copyright. Term of 3- The term for which copyright shall subsist shall, ex- copyright cept as otherwise expressly provided jby this Act, be the life of the author and a period of fifty years after his death: Provided that at any time after the expiration of twenty- five years, or in the case of a work in which copyright sub- sists at the passing of this Act thirty years, from the death of the author of a published work, copyright in the work shall not be deemed to be infringed by the reproduction of the work for sale if the person reproducing the work proves that he has given the prescribed notice in writing of his intention to reproduce the work, and that he has paid in the prescribed manner to, or for the benefit of, the owner of the copyright royalties in respect of all copies of the work sold by him calculated at the rate of ten per cent, on the price at which he publishes the work; and, for the purposes of this proviso, the Board of Trade may make regulations prescribing the mode in which notices are to be given, and the particulars to be given in such notices, and the mode, time, and frequency of the payment of royal- ties, including (if they think fit) regulations requiring pay- ment in advance or otherwise securing the payment of royalties. BRITISH COPYRIGHT ACT, 191 1 521 4. If at any time after the death of the author of a Compulsory literary, dramatic, or musical work which has been pub- licences lished or performed in public a complaint is made to the Judicial Committee of the Privy Council that the owner of the copyright in the work has refused to republish or to allow the republication of the work or has refused to allow the performance in public of the work, and that by reason of such refusal the work is withheld from the public, the owner of the copyright may be ordered to grant a licence to reproduce the work or perform the work in public, as the case may be, on such terms and subject to such conditions as the Judicial Committee may think fit. 5. — (i) Subject to the provisions of this Act, the au- Ownership thor of a work shall be the first owner of the copyright °f copyright, therein : Provided that — (o) where, in the case of an engraving, photograph, or portrait, the plate or other original was ordered by some other person and was made for valuable consid- eration in pursuance of that order, then, in the ab- sence of any agreement to the contrary, the person by whom such plate or other original was ordered shall be the first owner of the copyright; and (b) where the author was in the employment of some other person under a contract of service or apprentice- ship and the work was made in the course of his em- ployment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine, or similar periodical, there shall, in the absence of any agree- ment to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine, or similar periodical. (2) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to Umitations to the United Kingdom or any self- 522 COPYRIGHT Civil remedies for infringe- ment of copyright governing dominion or other part of His Majesty's domin- ions to which this Act extends, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by licence, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorized agent: Provided that, where the author of a work is the first owner of the copyright therein, no assignment of the copy- right, and no grant of any interest therein, made by him (otherwise than by will) after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the ex- piration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall, on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void, but nothing in this proviso shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work. (3) Where, under any partial assignment of copyright, the assignee becomes entitled to any right comprised in copy- right, the assignee as respects the right so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of the copyright, and the provisions of this Act shall have effect accordingly. Civil Remedies. 6. — (i) Where copyright in any work has been in- fringed, the owner of the copyright shall, except as other- wise provided by this Act, be entitled to all such remedies by way of injunction or interdict, damages, accounts, and otherwise, as are or may be conferred by law for the in- fringement of a right. BRITISH COPYRIGHT ACT, 191 1 523 (2) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the absolute discretion of the Court. (3) In any action for infringement of copyright in any work, the work shall be presumed to be a work in which copyright subsists and the plaintiff shall be presumed to be the owner of the copyright, unless the defendant puts in issue the existence of the copyright, or, as the case may be, the title of the plciintiff , and where any such question is in issue, then — (a) if a name purporting to be that of the author of the work is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be pre- sumed to be the author of the work; (6) if no name is so printed or indicated, or if the name so printed or indicated is not the author's true name or the name by which he is commonly known, and a name purporting to be that of the publisher or pro- prietor of the work is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the owner of the copyright in the work for the purposes of proceedings in respect of the infringement of copyright therein. 7. All infringing copies of any work in which copyright Rights of subsists, or of any substantial part thereof, and all plates owner used or intended to be used for the production of such in- "g^™st per- fringing copies, shall be deemed to be the property of the gggging J, owner of the copyright, who accordingly may take pro- dealing with ceedings for the recovery of the possession thereof or in infringing respect of the conversion thereof. copies, &c. 8. Where proceedings are taken in respect of the infringe- Exemption ment of the copyright in any work and the defendant in his p* innocent defence alleges that he was not aware of the existence of the jnf'^se' copyright in the work, the plaintiff shall not be entitled to |,jjjj to'pay any remedy other than an injunction or interdict in re- damages, &c. spect of the infringement if the defendant proves that at the date of the infringement he was not aware and had no 524 COPYRIGHT Restriction on remedies in the case of architec- ture Limitation of actions Penalties for dealing with infringing copies, &c. reasonable ground for suspecting that copyright subsisted in the work. 9. — (i) Where the construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work has been com- menced, the owner of the copyright shall not be entitled to obtain an injunction or interdict to restrain the construc- tion of such building or structure or to order its demolition. (2) Such of the other provisions of this Act as provide that an infringing copy of a work shall be deemed to be the property of the owner of the copyright, or as impose sum- mary penalties, shall not apply in any case to which this section applies. 10. An action in respect of infringement of copyright shall not be commenced after the expiration of three years next after the infringement. Summary Remedies. 11. — (i) If any person knowingly — (a) makes for sale or hire any infringing copy of a work in which copyright subsists; or (6) sells or lets for hire, or by way of trade exposes or offers for sale or hire any infringing copy of any such work; or (c) distributes infringing copies of any such work either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright; or {d) by way of trade exhibits in public any infringing copy of any such work; or (e) imports for sale or hire into the United Kingdom any infringing copy of any such work: he shall be guilty of an offence under this Act and be liable on summary conviction to a fine not exceeding forty shil- lings for every copy dealt with in contravention of this section, but not exceeding fifty pounds in respect of the same transaction; or, in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months. (2) If any person knowingly makes or has in his posses- BRITISH COPYRIGHT ACT, 191 1 525 sion any plate for the purpose of making infringing copies of any work in which copyright subsists, or knowingly and for his private profit causes any such work to be performed in public without the consent of the owner of the copyright, he shall be guilty of an offence under this Act, and be liable on summary conviction to a fine not exceeding fifty pounds, or, in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months. (3) The court before which any such proceedings are taken may, whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies or plates for the purpose of making in- fringing copies, be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit. (4) Nothing in this section shall, as respects musical 2 Edw. 7. c. works, affect the provisions of the Musical (Summary Pro- ^S- ceedings) Copyright Act, 1902, or the Musical Copyright °^°^' ?• c- Act, 1906. ^°' 12. Any person aggrieved by a summary conviction of Appeals to an offence under the foregoing provisions of this Act may quarter in England and Ireland appeal to a court of quarter ses- sessions sions and in Scotland under and in terms of the Summary Jurisdiction (Scotland) Acts. Extent of 13. The provisions of this Act with respect to summary provisions as remedies shall extend only to the United Kingdom. *" sumnoary remedies Importation of Copies. 14. — (i) Copies made out of the United Kingdom of Importation any work in which copyright subsists which if made in the o^ copies United Kingdom would infringe copyright, and as to which the owner of the copyright gives notice in writing by him- self or his agent to the Commissioners of Customs and Excise, that he is desirous that such copies should not be imported into the United Kingdom, shall not be so im- ported, and shall, subject to the provisions of this section, be deemed to be included in the table of prohibitions and 526 COPYRIGHT 39 & 40 Vict, restrictions contained in section forty-two of the Customs c. 36' Consolidation Act, 1876, and that section shall apply ac- cordingly. (2) Before detaining any such copies or taking any fur- ther proceedings with a view to the forfeiture thereof under the law relating to the Customs, the Commissioners of Customs and Excise may require the regulations under this section, whether as to information, conditions, or other matters, to be complied with, and may satisfy themselves in accordance with those regulations that the copies are such as are prohibited by this section to be imported. (3) The Commissioners of Customs and Excise may make regulations, either general or special, respecting the detention and forfeiture of copies the importation of which is prohibited by this section, and the conditions, if any, to be fulfilled before such detention and forfeiture, and may, by such regulations, determine the information, notices, and security to be given, and the evidence requisite for any of the purposes of this section, and the mode of verification of such evidence. _ (4) The regulations may apply to copies of all works the importation of copies of which is prohibited by this section, or different regulations may be made respecting different classes of such works. (5) The regulations may provide for the informant re- imbursing the Commissioners of Customs and Excise all expenses and damages incurred in respect of any detention made on his information, and of any proceedings conse- quent on such detention; and may provide for notices under any enactment repealed by this Act being treated as notices given under this section. (6) The foregoing provisions of this section shall have effect as if they were part of the Customs Consolidation Act, 1876: Provided that, notwithstanding anything in that Act, the Isle of Man shall not be treated as part of the United Kingdom for the purposes of this section. (7) This section shall, with the necessary modifications, apply to the importation into a British possession to which this Act extends of copies of works made out of that pos- session. BRITISH COPYRIGHT ACT, 191 1 527 Delivery of Books to Libraries. 15- — (i) The publisher of every book published in the Delivery United Kingdom shall, within one month after the publica- of copies tion, deliver, at his own expense, a copy of the book to the *° British trustees of the British Museum, who shall give a written ^^^^ ^^^^ receipt for it. libraries (2) He shall also, if written demand is made before the expiration of twelve months after publication, deliver within one month after receipt of that written demand or, if the demand was made before publication, within one month after publication, to some dep6t in London named in the demand a copy of the book for, or in accordance with the directions of, the authority having the control of each of the following libraries, namely: the Bodleian Library, Oxford, the University Library, Cambridge, the Library of the Faculty of Advocates at Edinburgh, and the Library of Trinity College, Dublin, and subject to the provisions of this section the National Library of Wales. In the case of an encyclopaedia, newspaper, review, magazine, or work published in a series of numbers or parts, the written de- mand may include all numbers or parts of the work which may be subsequently published. (3) The copy delivered to the trustees of the British Museum shall be a copy of the whole book with all maps and illustrations belonging thereto, finished and coloured in the same manner as the best copies of the book are pub- lished, and shall be bound, sewed, or stitched together, and on the best paper on which the book is printed. (4) The copy delivered for the other authorities men- tioned in this section shall be on the paper on which the largest number of copies of the book is printed for sale, and shall be in the like condition as the books prepared for sale. (5) The books of which copies are to be delivered to the National Library of Wales shall not include books of such classes as may be specified in regulations to be made by the Board of Trade. (6) If a publisher fails to comply with this section, he shall be liable on summary conviction to a fine not exceed- 528 COPYRIGHT ing five pounds and the value of the book, and the fine shall be paid to the trustees or authority to whom the book ought to have been delivered. (7) For the purposes of this section, the expression "book" includes every part or division of a book, pam- phlet, sheet of letter-press, sheet of music, map, plan, chart or table separately published, but shall not include any second or subsequent edition of a book unless such edition contains additions or alterations either in the letterpress or in the maps, prints, or other engravings belonging thereto. Special Provisions as to certain Works. Works of 16. — (i) In the case of a work of joint authorship, copy- joint authors right shall subsist during the life of the author who first dies and for a term of fifty years after his death, or during the life of the author who dies last, whichever period is the longer, and references in this Act to the period after the expiration of any specified number of years from the death of the author shall be construed as references to the period after the expiration of the like number of years from the death of the author who dies first or after the death of the author who dies last, whichever period may be the shorter, and in the provisions of this Act with respect to the grant of compulsory licences a reference to the date of the death of the author who dies last shall be substituted for the refer- ence to the date of the death of the author. (2) Where, in the case of a work of joint authorship, some one or more of the joint authors do not satisfy the conditions conferring copyright laid down by this Act, the work shall be treated for the purposes of this Act as if the other author or authors had been the sole author or authors thereof: Provided that the term of the copyright shall be the same as it would have been if all the authors had satisfied such conditions as aforesaid. (3) For the purposes of this Act, ' ' a work of joint author- ship" means a work produced by the collaboration of two or more authors in which the contribution of one author is BRITISH COPYRIGHT ACT, 191 1 529 not distinct from the contribution of the other author or authors. (4) Where a married woman and her husband are joint authors of a work the interest of such married woman therein shall be her separate property. 17- — (i) In the case of a literary dramatic or musical Posthumous work, or an engraving, in which copyright subsists at the works date of the death of the author or, in the case of a work of joint authorship, at or immediately before the date of the death of the author who dies last, but which has not been published, nor, in the case of a dramatic or musical work, been performed in public, nor, in the case of a lecture, been delivered in public, before that date, copyright shall subsist till publication, or performance or delivery in public, whichever may first happen, and for a term of fifty years thereafter, and the proviso to section three of this Act shall, in the case of such a work, apply as if the author had died at the date of such publication or performance or delivery in public as aforesaid. (2) The ownership of an author's manuscript after his death, where such ownership has been acquired under a testamentary disposition made by the author and the manuscript is of a work which has not been published nor performed in public nor delivered in public, shall be prima facie proof of the copyright being with the owner of the manuscript. 18. Without prejudice to any rights or privileges of the Provisions . Crown, where any work has, whether before or after the com- *s to Gov- mencement of this Act, been prepared or published by or ®^?^®''* under the direction or control of His Majesty or any Gov- ernment department, the copyright in the work shall, sub- ject to any agreement with the author, belong to His Majesty, and in such case shall continue for a period of fifty years from the date of the first publication of the work. 19. — (i) Copyright shall subsist in records, perforated Provisions as rolls, and other contrivances by means of which sounds *° mechani- cal instrU' right shall be fifty years from the making of the original may be mechanically reproduced, in like manner as if such • -I I t_ ^ ^1 ^ r ments contrivances were musical works, but the term 01 copy- 530 COPYRIGHT plate from which the contrivance was directly or indi- rectly derived, and the person who was the owner of such original plate at the time when such plate was made shall be deemed to be the author of thework, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has es- tablished a place of business within such parts. (2) It shall not be deemed to be an infringement of copy- right in any musical work for any person to make within the parts of His Majesty's dominions to which this Act extends records, perforated rolls, or other contrivances by means of which the work may be mechanically performed, if such person proves — (a) that such contrivances have previously been made by, or with the consent or acquiescence of, the owner of the copyright in the work; and (b) that he has given the prescribed notice of his inten- tion to make the contrivances, and has paid in the prescribed manner to, or for the benefit of, the owner of the copyright in the work royalties in respect of all such contrivances sold by him, calculated at the rate herein-after mentioned : Provided that — (i) nothing in this provision shall authorize any alter- ations in, or omissions from, the work reproduced, unless contrivances reproducing the work subject to similar alterations and omissions have been previously made by, or with the consent or acquiescence of, the owner of the copyright, or unless such alterations or omissions are reaisonably necessary for the adapta- tion of the work to the contrivances in question; and (ii) for the purposes of this provision, a musical work shall be deemed to include any words so closely asso- ciated therewith as to form part of the same work, but shall not be deemed to include a contrivance by means of which sounds may be mechanically reproduced. (3) The rate at which such royalties as aforesaid are to be calculated shall — BRITISH COPYRIGHT ACT, 191 1 531 (c) in the case of contrivances sold within two years after the commencement of this Act by the person making the same, be two and one-half per cent.; and (&) in the case of contrivances sold as aforesaid after the expiration of that period, five per cent, on the ordinary retail selling price of the contrivance cal- culated in the prescribed manner, so however that the roy- alty payable in respect of a contrivance shall, in no case, be less than a halfpenny for each separate musical work in which copyright subsists reproduced thereon, and, where the royalty calculated as aforesaid includes a fraction of a farthing, such fraction shall be reckoned as a farthing: Provided that, if, at any time after the expiration of seven years from the commencement of this Act, it appears to the Board of Trade that such rate as aforesaid is no longer equitable, the Board of Trade may, after holding a public inquiry, make an order either decreasing or increasing that rate to such extent as under the circumstances may seem just, but any order so made shall be provisional only and shall not have any effect unless and until confirmed by Parliament; but, where an order revising the rate has been so made and confirmed, no further revision shall be made before the expiration of fourteen years from the date of the last revision. (4) If any such contrivance is made reproducing two or more different works in which copyright subsists and the owners of the copyright therein are different persons, the sums payable by way of royalties under this section shall be apportioned amongst the several owners of the copy- right in such proportions as, failing agreement, may be determined by arbitration. (5) When any such contrivances by means of which a musical work may be mechanically performed have been made, then, for the purposes of this section, the owner of the copyright in the work shall, in relation to any person who makes the prescribed inquiries, be deemed to have given his consent to the making of such contrivances if he fails to reply to such inquiries within the prescribed time. 532 COPYRIGHT (6) For the purposes of this section, the Board of Trade may make regulations prescribing anything which under this section is to be prescribed, and prescribing the mode in which notices are to be given and the particulars to be given in such notices, and the mode, time, and frequency of the payment of royalties, and any such regulations may, if the Board think fit, include regulations requiring pay- ment in advance or otherwise securing the payment of royalties. (7) In the case of musical works published before the commencement of this Act, the foregoing provisions shall have effect, subject to the following modifications and ad- ditions : — (o) The conditions as to the previous making by, or with the consent or acquiescence of, the owner of the copy- right in the work, and the restrictions as to alterations in or omissions from the work, shall not apply: (b) The rate of two and one-half per cent, shall be sub- stituted for the rate of five per cent, as the rate at which royalties are to be calculated, but no royalties shall be payable in respect of contrivances sold before the first day of July, nineteen hundred and thirteen, if contrivances reproducing the same work had been law- fully made, or placed on sale, within the parts of His Majesty's dominions to which this Act extends before the first day of July, nineteen hundred and ten : (c) Notwithstanding any assignment made before the passing of this Act of the copyright in a musical work, any rights conferred by this Act in respect of the mak- ing, or authorising the making, of contrivances by means of which the work may be mechanically per- formed shall belong to the author or his legal personal representatives and not to the assignee, and the royal- ties aforesaid shall be payable to, and for the benefit of, the author of the work or his legal personal repre- sentatives : (d) The saving contained in this Act of the rights and interests arising from, or in connexion with, action taken before the commencement of this Act shall not BRITISH COPYRIGHT ACT, 191 1 533 be construed as authorizing any person who has made contrivances by means of which the work may be mechanically performed to sell any such contrivances, whether made before or after the passing of this Act, except on the terms and subject to the conditions laid down in this section: (e) Where the work is a work on which copyright is con- ferred by an Order in Council relating to a foreign country, the copyright so conferred shall not, except to such extent as may be provided by the Order, in- clude any rights with respect to the making of records, perforated rolls, or other contrivances by means of which the work may be mechanically performed. (8) Notwithstanding anything in this Act, where a record, perforated roll, or other contrivance by means of which sounds may be mechanically reproduced has been made before the commencement of this Act, copyright shall, as from the commencement of this Act, subsist therein in like manner and for the like term as if this Act had been in force at the date of the making of the original plate from which the contrivance was directly or indirectly derived. Provided that — (i) the person who, at the commencement of this Act, is the owner of such original plate shall be the first owner of such copyright ; and (ii) nothing in this provision shall be construed as con- ferring copyright in any such contrivance if the making thereof would have infringed copyright in some other such contrivance, if this provision had been in force at the time of the making of the first-mentioned contriv- ance. 20. Notwithstanding anything in this Act, it shall not be Provision as an infringement of copyright in an address of a political *" political nature delivered at a public meeting to publish a report ^P^®™^^ thereof in a newspaper. 21. The term for which copyright shall subsist in photo- Provisions graphs shall be fifty years from the making of the original *s to photo- negative from which the photograph was directly or indi- Srapns rectly derived, and the person who was owner of such nega- 534 COPYRIGHT Provisions as to designs registrable under 7 Edw. 7. c. 2g. Works of foreign authors first published in parts of His Majesty's dominions to which Act extends Existing works tive at the time when such negative was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts. 22. — (i) This Act shall not apply to designs capable of being registered under the Patents and Designs Act, 1907, except designs which, though capable of being so regis- tered, are not used or intended to be used as models or pat- terns to be multiplied by any industrial process. (2) General rules under section eighty-six of the Patents and Designs Act, 1907, may be made for determining the conditions under which a design shall be deemed to be used for such purposes as aforesaid. 23. If it appears to His Majesty that a foreign country does not give, or has not undertaken to give, adequate protection to the works of British authors, it shall be law- ful for His Majesty by Order in Council to direct that such of the provisions of this Act as confer copyright on works first published within the parts of His Majesty's dominions to which this Act extends, shall not apply to works pub- lished after the date specified in the Order, the authors whereof are subjects or citizens of such foreign country, and are not resident in His Majesty's dominions, and there- upon those provisions shall not apply to such works. 24. — (i) Where any person is immediately before the commencement of this Act entitled to any such right in any work as is specified in the first column of the First Schedule to this Act, or to any interest in such a right, he shall, as from that date, be entitled to the substituted right set forth in the second column of that schedule, or to the same interest in such a substituted right, and to no other right or in- terest, and such substituted right shall subsist for the term for which it would have subsisted if this Act had been in force at the date when the work was made and the work had been one entitled to copyright thereunder: Provided that — (o) if the author of any work in which any such right as BRITISH COPYRIGHT ACT, 191 1 535 is specified in the first column of the First Schedule to this Act subsists at the commencement of this Act has, before that date, assigned the right or granted any interest therein for the whole term of the right, then at the date when, but for the passing of this Act, the right would have expired the substituted right conferred by this section shall, in the absence of ex- press agreement, pass to the author of the work, and any interest therein created before the commence- ment of this Act and then subsisting shall deter- mine; but the person who immediately before the date at which the right would so have expired was the owner of the right or interest shall be entitled at his option either — (i) on giving such notice as hereinafter men- tioned, to an assignment of the right or the grant of a similar interest therein for the remainder of the term of the right for such consideration as, failing agreement, may be determined by arbitra- tion; or (ii) without any such assignment or grant, to continue to reproduce or perform the work in like manner as theretofore subject to the payment, if demanded by the author within three years after the date at which the right would have so ex- pired, of such royalties to the author as, failing agreement, may be determined by arbitration, or, where the work is incorporated in a collective work and the owner of the right or interest is the proprietor of that collective work, without any such payment; The notice above referred to must be given not more than one year nor less than six months before the date at which the right would have so expired, and must be sent by registered post to the author, or, if he cannot with reasonable diligence be found, advertised in the London Gazette and in two London newspapers: (&) where any person has, before the twenty-sixth day 536 COPYRIGHT Application of Act to British dominions of July nineteen hundred and ten, taken any action whereby he has incurred any expenditure or liability in connexion with the reproduction or performance of any work in a manner which at the time was law- ful, or for the purpose of or with a view to the repro- duction or performance of a work at a time when such reproduction or performance would, but for the passing of this Act, have been lawful, nothing in this section shall diminish or prejudice any rights or in- terest arising from or in connexion with such action which are subsisting and valuable at the said date, unless the person who by virtue of this section becomes entitled to restrain such reproduction or performance agrees to pay such compensation as, failing agreement, may be determined by arbitra- tion. (2) For the purposes of this section, the expression "author" includes the legal personal representatives of a deceased author. (3) Subject to the provisions of section nineteen sub- sections (7) and (8) and of section thirty-three of this Act, copyright shall not subsist in any work made before the commencement of this Act, otherwise than under, and in accordance with, the provisions of this section. Application to British Possessions. 25. — (i) This Act, except such of the provisions thereof as are expressly restricted to the United Kingdom, shall extend throughout His Majesty's dominions: Provided that it shall not extend to a self-governing dominion, un- less declared by the Legislature of that dominion to be in force therein either without any modifications or additions, or with such modifications and additions relating exclu- sively to procedure and remedies, or necessary to adapt this Act to the circumstances of the dominion, as may be en- acted by such Legislature. (2) If the Secretary of State certifies by notice published in the London Gazette that any self-governine: dominion has passed legislation under which works, the authors BRITISH COPYRIGHT ACT, 191 1 537 whereof were at the date of the making of the works British subjects resident elsewhere than in the dominion or (not being British subjects) were resident in the parts of His Majesty's dominions to which this Act extends, enjoy within the dominion rights substantially identical with those conferred by this Act, then, whilst such legislation continues in force, the dominion shall, for the purposes of the rights conferred by this Act, be treated as if it were a dominion to which this Act extends ; and it shall be lawful for the Secretary of State to give such a certificate as afore- said, notwithstanding that the remedies for enforcing the rights, or the restrictions on the importation of copies of works, manufactured in a foreign country, under the law of the dominion, differ from those under this Act. 26. — (i) The Legislature of any self-governing do- Legislative minion may, at any time, repeal all or any of the enactments powers relating to copyright passed by Parliament (including this ° ®® ". Act) so far as they are operative within that dominion: (jominions Provided that no such repeal shall prejudicially affect any legal rights existing at the time of the repeal, and that, on this Act or any part thereof being so repealed by the Legis- lature of a self-governing dominion, that dominion shall cease to be a dominion to which this Act extends. (2) In any self-governing dominion to which this Act does npt extend, the enactments repealed by this Act shall, so far as they are operative in that dominion, continue in force until repealed by the Legislature of that dominion. (3) Where His Majesty in Council is satisfied that the law of a self-governing dominion to which this Act does not extend provides adequate protection within the dominion for the works (whether published orunpubUshed) of authors who at the time of the making of the work were British subjects resident elsewhere than in that dominion. His Majesty in Council may, for the purpose of giving reciprocal protection, direct that this Act, except such parts (if any) thereof as may be specified in the Order, and subject to any conditions contained therein, shall, within the parts of His Majesty's dominions to which this Act extends, apply to works the authors whereof were, at the time of the making 538 COPYRIGHT, Power of Legislatures of British possessions to pass supplemental legislation Application to protecto- rates of the work, resident within the first-mentioned dominion, and to works first published in that dominion; but, save as provided by such an Order, works the authors whereof were resident in a dominion to which this Act does not extend shall not, whether they are British subjects or not, be en- titled to any protection under this Act except such protec- tion as is by this Act conferred on works first published within the parts of His Majesty's dominions to which this Act extends: Provided that no such Order shall confer any rights within a self-governing dominion, but the Governor in Council of any self-governing dominion to which this Act extends, may, by Order, confer within that dominion the like rights as His Majesty in Council is, under the forego- ing provisions of this subsection, authorised to confer within other parts of His Majesty's dominions. For the purposes of this subsection, the expression "a " dominion to which this Act extends " includes a dominion which is for the purposes of this Act to be treated as if it were a dominion to which this Act extends. 27. The Legislature of any British possession to which this Act extends may modify or add to any of the provi- sions of this Act in its application to the possession, but, ex- cept so far as such modifications and additions relate to procedure and remedies, they shall apply only to works the authors whereof were, at the time of the making of the work, resident in the possession, and to works first pub- lished in the possession. 28. His Majesty may, by Order in Council, extend this Act to any territories under his protection and to Cyprus, and, on the making of any such Order, this Act shall, sub- ject to the provisions of the Order, have effect as if the territories to which it applies or Cyprus were part of His Majesty's dominions to which this Act extends. BRITISH COPYRIGHT ACT, 191 1 539 PART II. INTERNATIONAL COPYRIGHT. 29. — (i) His Majesty may, by Order in Council, direct Power to that this Act (except such parts, if any, thereof as may be extend Act specified in the Order) shall apply — works"^° (a) to works first published in a foreign country to which the Order relates, in like manner as if they were first published within the parts of His Majesty's domin- ions to which this Act extends ; (b) to literary, dramatic, musical, and artistic works, or any class thereof, the authors whereof were at the time of the making of the work subjects or citizens of a foreign country to which the order relates, in like manner as if the authors were British subjects; (c) in respect of residence in a foreign country to which the Order relates, in like manner as if such residence were residence in the parts of His Majesty's domin- ions to which this Act extends ; and thereupon, subject to the provisions of this Part of this Act and of the Order, this Act shall apply accordingly: Provided that — (i) before making an Order in Council under this sec- tion in respect of any foreign country (other than a country with which His Majesty has entered into a convention relating to copyright). His Majesty shall be satisfied that that foreign country has made, or has undertaken to make, such provisions, if any, as it appears to His Majesty expedient to require for the protection of works entitled to copyright under the provisions of Part I. of this Act; (ii) the Order in Council may provide that the term of copyright within such parts of His Majesty's do- minions as aforesaid shall not exceed that conferred by the law of the country to which the Order relates ; (iii) the provisions of this Act as to the delivery of copies of books shall not apply to works first pub- 540 COPYRIGHT 49 & SO Vict c. 33- Application of Part n. to British possessions lished in such country, except so far as is provided by the Order; (iv) the Order in Council may provide that the enjoy- ment of the rights conferred by this Act shall be sub- ject to the accomplishment of such conditions and formalities (if any) as may be prescribed by the Order; (v) in applying the provision of this Act as to owner- ship of copyright, the Order in Council may make such modifications as appear necessary having re- gard to the law of the foreign country; (vi) in applying the provisions of this Act as to exist- ing works, the Order in Council may make such modifications as appear necessary, and may pro- vide that nothing in those provisions as so applied shall be construed as reviving any right of prevent- ing the production or importation of any trans- lation in any case where the right has ceased by virtue of section five of the International Copy- right Act, 1 886. (2) An Order in Council under this section may extend to all the several countries named or described therein. 30. — (i) An Order in Council under this Part of this Act shall apply to all His Majesty's dominions to which this Act extends except self-governing dominions and any other possession specified in the order with respect to which it appears to His Majesty expedient that the Order should not apply. (2) The Governor in Council of any self-governing do- minion to which this Act extends may, as respects that dominion, make the like orders as under this Part of this Act His Majesty in Council is authorised to make with re- spect to His Majesty's dominions other than self-govern- ing dominions, and the provisions of this Part of this Act shall, with the necessary modifications, apply accordingly. (3) Where it appears to His Majesty expedient to ex- cept from the provisions of any order any part of his do- minions not being a self-governing dominion, it shall be lawful for His Majesty by the same or any other Order in BRITISH COPYRIGHT ACT, 191 1 541 Council to declare that such order and this Part of this Act do not, and the same shall not, apply to such part, except so far as is necessary for preventing any prejudice to any rights acquired previously to the date of such Order. PART III. SUPPLEMENTAL PROVISIONS. 31 . No person shall be entitled to copyright or any simi- Abrogation lar right in any literary, dramatic, musical, or artistic work, of common whether published or unpublished, otherwise than under ^^ ^is^ts and in accordance with the provisions of this Act, or of any other statutory enactment for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence. 32. — (i) His Majesty in Council may make Orders for Provisions altering, revoking, or varying any Order in Council made as to Orders under this Act, or under any enactments repealed by this "* Council Act, but any Order made under this section shall not affect prejudicially any rights or interests acquired or accrued at the date when the Order comes into operation, and shall provide for the protection of such rights and interests. (2) Every Order in Council made under this Act shall be published in the London Gazette and shall be laid be- fore both Houses of Parliament as soon as may be after it is made, and shall have effect as if enacted in this Act. 33. Nothing in this Act shall deprive any of the univer- Saving of sities and colleges mentioned in the Copyright Act, 1775, university of any copyright they already possess under that Act, but coPg^sJ^*- the remedies and penalties for infringement of any such g_ , copyright shall be under this Act and not under that Act. 34. There shall continue to be charged on, and paid out Saving of of, the Consolidated Fund of the United Kingdom such an- compensa- nual compensation as was immediately before the com- ^y*j,^^"gg mencement of this Act payable in pursuance of any Act as compensation to a library for the loss of the right to re- ceive gratuitous copies of books : 542 COPYRIGHT Provided that this compensation shall not be paid to a library in any year, unless the Treasury are satisfied that the compensation for the previous year has been applied in the purchase of books for the use of and to be preserved in the library. Interpreta- , 35. — (i) In this Act, unless the context otherwise re- tion i quires, — : "Literary work" includes maps, charts, plans, tables, and compilations; "Dramatic work" includes any piece for recitation, cho- reographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph pro- duction where the arrangement or acting form or the combination of incidents represented give the work an original character; "Artistic work" includes works of painting, drawing, sculpture and artistic craftsmanship, and architec- tural works of art and engravings and photographs; "Work of sculpture" includes casts and models; "Architectural work of art" means any building or structure having an artistic character or design, in re- spect of such character or design, or any model for such building or structure, provided that the protec- tion afforded by this Act shall be confined to the ar- tistic character and design, and shall not extend to processes or methods of construction; "Engravings" include etchings, lithographs, wood-cuts, prints, and other similar works, not being photo- graphs; "Photograph" includes photo-lithograph and any work produced by any process analogous to photography; "Cinematograph" includes any work produced by any process analogous to cinematography; "Collective work" means — (a) an encyclopaedia, dictionary, year book, or sim- ilar work; (&) a newspaper, review, magazine, or similar peri- odical; and BRITISH COPYRIGHT ACT, 191 1 543 (c) any work written in distinct parts by different authors, or in which works or parts of works of differ- ent authors are incorporated ; "Infringing," when appUed to a copy of a work in which copyright subsists, means any copy, including any colourable imitation, made, or imported in contra- vention of the provisions of this Act; "Performance" means any acoustic representation of a work and any visual representation of any dramatic action in a work, including such a representation made by means of any mechanical instrument; " Delivery," in relation to a lecture, includes delivery by means of any mechanical instrument; "Plate" includes any stereotype or other plate, stone, block, mould, matrix, transfer, or negative used or in- tended to be used for printing or reproducing copies of any work, and any matrix or other appliance by which records, perforated rolls or other contrivances for the acoustic representation of the work are or are intended to be made; "Lecture" includes address, speech, and sermon; "Self-governing dominion" means the Dominion of Canada, the Commonwealth of Australia, the Domin- ion of New Zealand, the Union of South Africa, and Newfoundland. (2) For the purposes of this Act (other than those relat- ing to infringements of copyright), a work shall not be deemed to be published or performed in public, and a lec- ture shall not be deemed to be delivered in public, if pub- lished, performed in public, or delivered in public, without the consent or acquiescence of the author, his executors administrators or assigns. (3) For the purposes of this Act, a work shall be deemed to be first published within the parts of His Majesty's do- minions to which this Act extends, notwithstanding that it has been published simultaneously in some other place, un- less the publication in such parts of His Majesty's domin- ions as aforesaid is colourable only and is not intended to satisfy the reasonable requirements of the public, and a 544 COPYRIGHT Repeal Short title and com- mencement 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, for the time being, be fixed by Order in Council. (4) Where, in the case of an unpublished work, the mak- ing of a work has extended over a considerable period, the conditions of this Act conferring copyright shall be deemed to have been complied with, if the author was, during any substantial part of that period, a British subject or a resident within the parts of His Majesty's dominions to which this Act extends. (5) For the purposes of the provisions of this Act as to residence, an author of a work shall be deemed to be a resi- dent in the parts of His Majesty's dominions to which this Act extends if he is domiciled within any such part. 36. Subject to the provisions of this Act, the enactments mentioned in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of that schedule : Provided that this repeal shall not take effect in any part of His Majesty's dominions until this Act comes into oper- ation in that part. 37. — (i) This Act may be cited as the Copyright Act, 1911. (2) This Act shall come into operation — (a) in the United Kingdom, on the first day of July nineteen hundred and twelve or such earlier date as may be fixed by Order in Council ; (6) in a self-governing dominion to which this Act ex- tends, at such date as may be fixed by the Legisla- ture of that dominion; (c) in the Channel Islands, at such date as may be fixed by the States of those islands respectively; {d) in any other British possession to which this Act extends, on the proclamation thereof within the possession by the Governor. BRITISH COPYRIGHT MEASURE 545 FIRST SCHEDULE. EXISTING RIGHTS. EXISTING RIGHT. SUBSTITUTED RIGHT. (o) In the case of Works other than Dramatic and Musical Works. Copyright. \ Copyright as defined by this Act.* (6) In the case oj Musical and Dramatic Works. Both copyright and performing right. Copyright, but not performing right. Performing right, but not copy- right. Copyright as defined by this Act.* Copyright as defined by this Act, except the sole right to per- form the work or any substan- tial part thereof in public. The sole right to perform the work in public, but none of the other rights comprised in copy- right as defined by this Act. For the purposes of this Schedule the following expres- sions, where used in the first column thereof, have the fol- lowing meanings: — "Copyright," in the case of a work which according to the law in force immediately before the commence- ment of this Act has not been published before that date and statutory copyright wherein depends on publication, includes the right at common law (if any) to restrain publication or other dealing with the work; "Performing right," in the case of a work which has not been performed in public before the commence- ment of this Act, includes the right at common law (if any) to restrain the performance thereof in public. * In the case of an essay, article, or portion forming part of and first published in a review, magazine, or other periodical or work of a like nature, the right shall be subject to any right of publishing the essay, article, or portion in a separate form to which the author is entitled at the commencement of this Act, or would if this Act had not been passed have become entitled under section eighteen of the Copyright Act, 1842. 546 COPYRIGHT SECOND SCHEDULE. ENACTMENTS REPEALED. SESSION AND CHAPTER. SHORT TITLE. EXTENT OF REPEAL. 8 Geo. 2. c. 13. The Engraving Copyright Act, 1734. The whole Act. 7 Geo. 3. c. 38. The Engraving Copyright Act, 1767. The whole Act. 15 Geo. 3. c. 53- The Copyright Act, 1775. The whole Act. 17 Geo. 3. c. 57. The Prints Copyright Act, 1777. The whole Act. 54 Geo. 3. c. The Sculpture Copyright The whole Act. 56. Act, 1814. 3&4Will.4.c. The Dramatic Copyright The whole Act. 15- Act, 1833. 5&6Will.4.c. The Lectures Copyright The whole Act. 65- Act, 1835. 6&7Will.4.c. The Prints and Engrav- The whole Act. 59- ings Copyright (Ireland) Act, 1836. 6 & 7 Will. 4. c. no. 5 & 6 Vict. c. 45- 7 & 8 Vict. c. The Copyright Act, 1836. The whole Act. The Copyright Act, 1842. The whole Act. The International Copy- The whole Act. 12. right Act, 1844. lo&ii Vict. c. The Colonial Copyright The whole Act. 95- Act, 1847. 15 & 16 Vict. c. The International Copy- The whole Act. 12. right Act, 1852. 25 & 26 Vict. The Fine Arts Copyrfght Sections one to six. In c. 68. Act, 1862. section eight the words "and pursuant "to any Act for the " protection of copy- " right engravings." Sections nine tc twelve. 38 & 39 Vict. The International Copy- The whole Act. c. 12. right Act, 1875. 39 & 40 Vict. The Customs Consolida- Section forty-two, from c. 36. tion Act, 1876. " Books wherein " to "such copyright will expire." Sections forty-four, forty-five and one hundred and fifty-two. 45 & 46 Vict. The Copyright (Musical The whole Act. c. 40. Compositions) Act, 1882. BRITISH COPYRIGHT MEASURE 547 SESSION AND CHAPTER. SHORT TITLE. EXTENT OF REPEAL. 49 & 50 Vict. The International Copy- The whole Act. c. 33. right Act, 1886. 51 & 52 Vict. The Copyright (Musical The whole Act. c. 17. Compositions) Act, 1888. 52 & 53 Vict. The Revenue Act, 1889. Section one, from c. 42. "Books first pub- lished" to "as pro- vided in that sec- tion." 6 Edw. 7. c. The Musical Copyright In section three the 36. Act, 1906. words "and which has "been registered in ac- "cordance with the "provisions of the " Copyright Act, 1842, "or of thelnternation- "al Copyright Act, " 1844, which registra- "tion may be efifect- "ed notwithstanding "anything in the In- ' ' ternational Copy- "right Act, 1886." 548 COPYRIGHT 6a. FINE ARTS COPYRIGHT ACT, 1 862 [Unrepealed Sections] (25 & 26 VICTORIA, CHAPTER 68) Penalties on VII. No Person shall do or cause to be done any or fraudulent either of the following Acts; that is to say, and Sir"*** First, no Person shall fraudulently sign or otherwise aiiEx, or fraudulently cause to be signed or other- wise affixed, to or upon any Painting, Drawing, or Photograph, or the Negative thereof, any Name, Initials, or Monogram: Secondly, no Person shall fraudulently sell, publish, exhibit, or dispose of, or offer for Sale, Exhibition, or Distribution, any Painting, Drawing, or Photo- graph, or Negative of a Photograph, having thereon the Name, Initials, or Monogram of a Person who did not execute or make such Work: Thirdly, no Person shall fraudulently utter, dispose of, or put off, or cause to be uttered or disposed of, any Copy or colourable Imitation of any Painting, Drawing, or Photograph, or Negative of a Photo- graph, whether there shall be subsisting Copyright therein or not, as having been made or executed by the Author or Maker of the original Work from which such Copy or Imitation shall have been taken: Fourthly, where the Author or Maker of any Painting, Drawing, or Photograph, or Negative of a Photo- graph, made either before or after the passing of this Act, shall have sold or otherwise parted with the Possession of such Work, if any Alteration shall afterwards be made therein by any other Person, by Addition or otherwise, no Person shall be at liberty, during the Life of the Author or Maker of such Work, without his Consent, to make or know- ingly to sell or publish, or offer for Sale, such Work or any Copies of such Work so altered as aforesaid, BRITISH COPYRIGHT MEASURE 549 or of any Part thereof, as or for the unaltered Work of such Author or Maker: Every Offender under this Section shall, upon Convic- Penalties tion, forfeit to the Person aggrieved a Sum not exceeding Ten Pounds, or not exceeding double the full Price, if any, at which all such Copies, Engravings, Imitations, or altered Works shall have been sold or offered for Sale; and all such Copies, Engravings, Imitations, or altered Works shall be forfeited to the Person, or the Assigns or legal Representatives of the Person, whose Name, Initials, or Monogram shall be so fraudulently signed or affixed thereto, or to whom such spurious or altered Work shall be so fraudulently or falsely ascribed as aforesaid : Provided always, that the Penalties imposed by this Section shall not be incurred unless the Person whose Name, Initials, or Monogram shall be so fraudulently signed or affixed, or to whom such spurious or altered Work shall be so fraudu- lently or falsely ascribed as aforesaid, shall have been living at or within Twenty Years next before the Time when the Offence may have been committed. VIII. All pecuniary Penalties which shall be incurred. Recovery of and all such unlawful Copies, Imitations, and all other pecuniary Effects and Things as shall have been forfeited by Of- Pe'ialties fenders, pursuant to this Act, may be recovered by the Person herein-before and in any such Acts as aforesaid em- powered to recover the same respectively, and herein-after called the Complainant or the Complainer, as follows: In England and Ireland, either by Action against the In England Party offending, or by summary Proceeding before ^^^ Ireland any Two Justices having Jurisdiction where the Party offending resides: In Scotland by Action before the Court of Session in In Scotland ordinary Form, or by summary Action before the Sheriff of the County where the Offence may be committed or the Offender resides, and any Judg- ment so to be pronounced by the Sheriff in such summary Application shall be final and conclusive, and not subject to Review by Suspension, Reduc- tion, or otherwise. 550 COPYRIGHT 6&. MUSICAL (summary PROCEEDINGS) COPY- RIGHT ACT, 1902 [ Unrepealed] (2 EDWARD VII., CHAPTER 1 5) An Act to amend the Law relating to Musical Copyright, [zzd July, 1902.] Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament as- sembled, and by the authority of the same, as follows: Seizure, etci i. A court of summary jurisdiction, upon the applica- of pirated tion of the owner of the copyright in any musical work, copies may act as follows: If satisfied by evidence that there is reasonable ground for believing that pirated copies of such musical work are being hawked, carried about, sold, or offered for sale, may, by order, authorize a constable to seize such copies without warrant and to bring them before the court, and the court, on proof that the copies are pirated, may order them to be destroyed or to be delivered up to the owner of the copyright if he makes application for that delivery. 2. If any person shall hawk, carry about, sell or offer for sale any pirated copy of any musical work, every such pirated copy may be seized by any constable without war- rant, on the request in writing of the apparent owner of the copyright in such work, or of his agent thereto authorised in writing, and at the risk of such owner. On seizure of any such copies, they shall be conveyed by such constable before a court of summary jurisdiction, and, on proof that they are infringements of copyright, shall be forfeited or destroyed, or otherwise dealt with as the court may think fit. Definitions 3 . " Musical copyright ' ' means the exclusive right of the owner of such copyright under the Copyright Acts in force for the time being to do or to authorise another person to Power to seize copies on hawkers BRITISH COPYRIGHT MEASURE 55! do all or any of the following things in respect of a nausical work: (i) To make copies by writing or otherwise of such musical work. (2) To abridge such musical work. (3) To make any new adaptation, arrangement, or set- ting of such musical work, or of the melody thereof, in any notation or system. "Musical work" means any combination of melody and harmony, or either of them, printed, reduced to writing or otherwise graphically produced or reproduced. "Pirated musical work" means any musical work writ- ten, printed, or otherwise reproduced, without the consent lawfully given by the owner of the copyright in such musi- cal work. 4. This Act may be cited as The Musical (Summary Short title Proceedings) Copyright Act, 1902, and shall come into and corn- operation on the first day of October one thousand nine nieneement hundred and two, and shall apply only to the United Kingdom. 552 COPYRIGHT A. D. 1906 Penalty for beiog in possession of pirated music Constable may take into custody without warrant 6c. MUSICAL COPYRIGHT ACT, I906 [Unrepealed] (6 EDWARD VII., CHAPTER 36) An Act to amend the Law relating to Musical Copyright. [4TH August, 1906.] Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, as follows: — I. — (i) Every person who prints, reproduces, or sells, or exposes, offers, or has in his possession for sale, any pirated copies of any musical work, or has in his possession any plates for the purpose of printing or reproducing pirated copies of any musical work, shall (unless he proves that he acted innocently) be guilty of an offence punishable on summary conviction, and shall be liable to a fine not exceeding five pounds, and on a second or subsequent con- viction to imprisonment with or without hard labour for a term not exceeding two months or to a fine not exceeding ten pounds : Provided that a person convicted of an offence under this Act who has not previously been convicted of such an offence, and who proves that the copies of the musical work in respect of which the offence was committed had printed on the title page thereof a name and address purporting to be that of the printer or publisher, shall not be liable to any penalty under this Act unless it is proved that the copies were to his knowledge pirated copies. (2) Any constable may take into custody without war- rant any person who in any street or public place sells or exposes, offers, or has in his possession for sale any pirated copies of any such musical work as may be specified in any general written authority addressed to the chief officer of police, and signed by the apparent owner of the copyright in such work or his agent thereto authorised in writing, requesting the arrest, at the risk of such owner, of all persons found committing offences under this section in BRITISH COPYRIGHT MEASURE 553 respect to such work, or who offers for sale any pirated copies of any such specified musical work by personal can- vass or by personally delivering advertisements or circulars. (3) A copy of every written authority addressed to a chief officer of police under this section shall be open to inspection at all reasonable hours by any person without payment of any fee, and any person may take copies of or make extracts from any such authority. (4) Any person aggrieved by a summary conviction under this section may in England or Ireland appeal to a court of quarter sessions, and in Scotland under and in terms of the Summary Prosecutions Appeals (Scotland) 38 & 39 Vict. Act, 1875. c. 62 2. — (i) If a court of summary jurisdiction is satisfied Right of en- by information on oath that there is reasonable ground for try by police suspecting that an offence against this Act is being com- ^ /f^^*^" "" mitted on any premises, the court may grant a search war- rant authorising the constable named therein to enter the premises between the hours of six of the clock in the morn- ing and nine of the clock in the evening, and, if necessary, to use force for making such entry, whether by breaking open doors or otherwise, and to seize any copies of any musical work or any plates in respect of which he has rea- sonable ground for suspecting that an offence against this Act is being committed. (2) All copies of any musical work and plates seized under this section shall be brought before a court of sum- mary jurisdiction, and if proved to be pirated copies or plates intended to be used for the printing or reproduction of pirated copies shall be forfeited and destroyed or other- wise dealt with as the court think fit. 3. In this Act — Definitions: The expression "pirated copies" means any copies of "Pirated any musical work written, printed, or otherwise re- copies " produced without the consent lawfully given by the owner of the copyright in such musical work: The expression "musical work" means a musical work "Musical in which there is a subsisting copyright: '^"''k " The expression " plates " includes any stereotype or other " Plates " 554 COPYRIGHT " Chief officer of police " S3&54 Vict. c. 45 S3&S4 Vict. c. 67 " Court of summary jurisdiction" Short title plates, stones, matrices, transfers, or negatives used or intended to be used for printing or reproducing copies of any musical work: Provided that the expressions '!.pirated copies" and "plates" shall not, for the pur- poses of this Act, be deemed to include perforated music rolls used for playing mechanical instruments, or records used for the reproduction of sound waves, or the matrices or other appliances by which such rolls or records respectively are made: The expression "chief officer of police" — (a) with respect to the City of London, means the Commissioner of City Police; (6) elsewhere in England has the same meaning as in the Police Act, 1890; (c) in Scotland has the same meaning as in the Police (Scotland) Act, 1890; (d) in the police district of Dublin metropolis means either of the Commissioners of Police for the said district; (e) elsewhere in Ireland means the District In- spector of the Royal Irish Constabulary: The expression "court of summary jurisdiction" in Scotland means the sheriff or any magistrate of any royal, parliamentary, or police burgh officiating under the provisions of any local or general police Act. 4. This Act may be cited as the Musical Copyright Act, 1906. 7. CANADIAN COPYRIGHT MEASURE, I9II An Act Respecting Copyright 1. This Act may be cited as The Copyright Act, igii. Short title INTERPRETATION 2. In this Act, unless the context otherwise requires, — Definitions: "Minister" means the Minister of Agriculture; "Minister" "Department" means the Department of Agriculture; "Depart- " legal representatives" includes heirs, executors, ad- ment" ministrators and assigns, or other legal representa- ^^* ^ ° => t- representa- tives; ti^gg,, literary work" includes maps, charts, plans, and tables; "Literary" "dramatic work" includes any piece for recitation, cho- and other reographic work or entertainment in dumb show, the works scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph produc- tion where the arrangement or acting form or the com- bination of incidents represented give the work an original character; "literary work," "dramatic work" and "musical work" includes records, perforated rolls or other contrivances by means of which a work may be mechanically per- formed or delivered ; "artistic work" includes works of painting, drawing, sculpture and artistic craftsmanship, and architec- tural works of art, and engravings and photographs ; "work of sculpture" includes casts and models; "architectural work of art" means any building or struc- ture having an artistic character or design, in respect of such character or design, but not in respect of the processes or methods of its construction ; "engravings" include etchings, lithographs, wood-cuts, "Engrav- prints and other similar works, not being photographs ; ings" "photograph" includes photo-lithograph and any work "Photo- produced by any process analogous to photography ; graph " 556 COPYRIGHT "Cinemato- graph" "Pirated" "PubUca- tion" "Perform- ance" "DeUvery" "Plate" "Lecture" "Copyright" "cinematograph" includes any work produced by any process analogous to cinematography; "pirated," when applied to a copy of a work in which copyright subsists, means any copy made without the consent or acquiescence of the owner of the copyright, or imported contrary to this Act; ''publication" means the issue of copies to the public and does not include the performance in public of a dramatic or musical work, the delivery in public of a lecture, the exhibition in public of an artistic work, or the construction of an architectural work of art ; "performance" means any acoustic representation of a work and any visual representation of any dramatic action in a work, including such a representation made by means of any mechanical instrument; "delivery," in relation to a lecture, includes delivery by means of any mechanical instrument; "plate" includes any stereotype or other plate, stone, matrix, transfer, or negative used or intended to be used for printing or reproducing copies of any work, and any matrix or other appliance by which records, perforated rolls or other contrivance for the acoustic representation of the work are made or intended to be made; "lecture" includes address, speech and sermon; "copyright" means the sole right to produce or repro- duce any original literary, dramatic, musical or artistic work or any substantial part thereof in any material form whatsoever and in any language ; to perform, or in the case of a lecture to deliver, the work or any sub- stantial part thereof in public; if the work is unpub- lished, to publish the work; and shall include the sole right,— (a) in the case of a dramatic work, to convert it into a novel or other non-dramatic work; (b) in the case of a novel or other non-dramatic work, to convert it into a dramatic work, either by way of multiplication of copies of by way of performance in pubUc; CANADIAN COPYRIGHT MEASURE 557 (c) in the case of a literary, dramatic or musical work, to make any record, perforated roll or other contri- vance by means of which the work may be mechani- cally performed, and to authorize any such acts as aforesaid. (2.) For the purposes of this Act (other than those relat- Publication, ing to infringements of copyright), a work shall not be performance deemed to be published or performed in public, and a lee- ?' delivery ture shall not be deemed to be delivered in public, if pub- lished, performed in public or delivered in public without the consent or acquiescence of the person entitled to au- thorize its publication, performance in public or delivery in public. (3.) For the purposes of this Act a work shall be deemed Simulta- to be first published in Canada, notwithstanding that it neous has been published simultaneously in some other country, Publication unless the publication in Canada is colourable only and is not intended to satisfy the reasonable requirements of the public, and a work shall be deemed to be published simul- taneously in two countries if the time between the publica- tion in one such country and the publication in the other country does not exceed fourteen days. (4.) Where the making of a work has extended over a Copyright considerable period the conditions of this Act conferring to bona fide copjTight shall be deemed to have been complied with '^^ident if the author was, during any substantial part of that period, a bona fide resident of Canada. CONDITIONS OF COPYRIGHT 3. Subject to the provisions of this Act, copyright shall Conditions of subsist in Canada for the term hereinafter mentioned in copyright in every original literary, dramatic, musical and artistic work ^^^f^ the author whereof was, at the date of the making of the work, a bona fide resident of Canada, but in no other works except so far as the protection conferred by this act is ex- tended by order in council thereunder. (2.) Every copy of a work published in Canada shall be Notice of printed or made in Canada, and shall bear notice of copy- copyright — right — 558 COPYRIGHT Of books, engravings, photographs, maps, etc. Of paintings, sculpture, etc. Infringement of copyright Exceptions (c) if the work is a book or other printed publication, on the title page or on the page immediately following ; or, (fi) if the work is a literary work (other than a book, or other printed publication), or a musical work, engrav- ing, photograph or cinematograph, on the face thereof; or, (c) if the work is a volume of maps, charts, plans, tables, music, engravings or photographs, on the title page or first page thereof: in the words "Copyright, Canada, 19 — , by A. B." (3.) Every painting, drawing or work of sculpture pub- lished in Canada shall be made in Canada, and the signa- ture of the author shall be notice of copyright. INFRINGEMENT 4. Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright: Pro- vided that the following acts shall not constitute an in- fringement of copyright; — (i) any fair dealing with any work for the purposes of private study, research, criticism or review; (ii) where the author of an artistic work is not the owner of the copyright therein, the use by the author of any mould, cast, sketch, plan, model or study made by him for the purpose of the work, provided that he does not thereby repeat or imitate the main design of the work; (iii) the making of paintings, drawings, engravings or photographs of a work of sculpture or artistic crafts- manship, if situate in a public place or building, or the making of paintings, drawings, engravings or photo- graphs (which are not in the nature of architectural drawings or plans) of any architectural work of art; (iv) the publication in a newspaper of a report of a lec- ture delivered in public, unless the report is prohibited by notice given either — (a) orally, at the beginning of the lecture, or, if the lecture is one of a series of lectures given by the CANADIAN COPYRIGHT MEASURE 559 same lecturer on the same subject at the same place, at the beginning of the first lecture of the series ; or (&) by a conspicuous written or printed notice affixed, before the lecture, or the first lecture of the series, is given, on the entrance doors of the build- mg in which the lecture or series of lectures is given, or in a place near the lecturer, (v) the representing of any scene or object, notwith- standing that there may be copyright in some other representation of such scene or object. (2.) Copyright in a work shall also be deemed to be in- Infringement fringed by any person who sells or lets for hire, or exposes, ^y sale, etc. offers or has in his possession for sale or hire, or distributes or exhibits in public, or imports for sale or hire into Canada, any work which to his knowledge infringes copyright or would infringe copyright if it had been made in Canada. (3.) Copyright in a work shall also be deemed to be in- Infringement fringed by any person who for private profit permits a ^7 public theatre or other place of entertainment to be used for the Perfo>™«Ke performance in public of the work without the consent of the owner of the copyright, unless he proves that he acted innocently. TERM OF COPYRIGHT 5. The term for which copyright shall subsist, shall, ex- Tenn of cept as otherwise provided by this Act, be the life of the copyright author and a period of fifty years after his death unless pre- viously determined by first publication elsewhere than in Canada, except as otherwise provided by this Act, or by failure to comply with any other requirement of this Act. LICENSES TO RE-PUBLISH 6. If, at any time after a work has been published or per- License to formed in public, a petition is presented to the Minister by re-publish any person interested, alleging that, by reason of the with- °' perform holding of the work from the public or of the price charged p^ijUg for copies of the work or for the right to perform the work granted hj in public, the reasonable requirements of the public with Minister respect to the work are not satisfied, and praying for the "P°**. grant of a license to reproduce the work or perform the Petition 56o COPYRIGHT Appeal work in public, the Minister shall consider the petition, and of, after inquiry, he is satisfied that the allegations con- tained therein are correct, and if within a reasonable time no remedy is provided by the owner of the copyright, he may grant to the petitioner a license to reproduce or per- form the work in public in Canada on such terms as respects price and payment of royalties to the owner of the copy- right in the work, and otherwise, as the Minister thinks fit. (2.) Any decision of the Minister under this section shall be subject to appeal to the Exchequer Court of Canada, and the decision of that court shall be final. Ownership OWNERSHIP AND ASSIGNMENT OF COPYRIGHT of copyright y. Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that — (a) where in the case of an engraving, photograph or portrait the work was ordered by some other person and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement in writing to the contrary the person by whom the work was ordered shall be the first owner of the copy- right; (b) where the author was in the employment of some other person and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the Assignment copyright. of copyright (2.) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to any particular place, and either for the whole term of the copyright or any part thereof, and may grant any interest in the right by license, but no such assignment or grant shall be valid unless it is in writ- ing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorized agent. CANADIAN COPYRIGHT MEASURE 561 (3.) Any grant of an interest in a copyright, either by as- Registration signment or license, shall be adjudged void against any sub- °* assign- sequent assignee or licensee for valuable consideration ™®'^*°' without actual notice unless such assignment or license is registered in the manner directed by this Act before the registering of the instrument under which the subsequent assignee or licensee claims. (4.) For the purposes of this Act as to registration, any Duplicate grant of an interest in a copyright, either by way of assign- copies ment or license, shall be made in duplicate. (5.) Application for registration of a grant of any interest Application in a copyright, either by way of assignment or license, shall for be made by production of both duplicates to the Depart- registration ment and payment of the prescribed fee. One duplicate shall be retained at the Department and the other shall be returned to the person depositing it, with a certificate of registration. (6.) Subject to the provisions of this Act the grant of an Assignee or interest in a copyright, either by assignment or license, licensee shall be void unless the assignee or licensee, at the time «°ustcompy such grant is executed, satisfies the conditions conferring copyright prescribed by this Act. CIVIL REMEDIES 8. Where copyright in any work has been infringed, the Civil owner of the copyright shall, except as otherwise provided remedies for by this Act, be entitled to all such remedies by way of in- infringei^nt junction, damages, accounts and otherwise as are conferred by law. (2.) The costs in any proceedings in respect of the in- Costs fringement of copyright shall be in the absolute discretion of the court. 9. All pirated copies of any work in which copyright sub- Rights of sists, and all plates used or intended to be used for the pro- owner duction of pirated copies of such work, shall be deemed to ^^^l^^^ "^ be the property of the owner of the copyright, who may gopig^ take proceedings for the recovery of possession of such copies or in respect of the conversion thereof. 562 COPYRIGHT Remedies in the case of architecture' Limitation 10. Where a building or other structure which infringes or which, if completed, would infringe the copyright in some other work has commenced to be constructed, the owner of the copyright shall not be entitled to obtain an in- junction to restrain the construction of such building or structure or to order its demolition. (2.) Such of the other provisions of this Act as provide that a pirated copy shall be deemed the property of the owner of the copyright, or as impose summary penalties, shall not apply in any case to which this section applies. Penalty for false entries OFFENCES AND PENALTIES II. Every person who wilfully makes or causes to be made any false entry in any of the registry books herein- before mentioned, or who wilfully produces, or causes to be tendered in evidence, any paper which falsely purports to be a copy of an entry in any of the said books, is guilty of an indictable offence. Limitation 12. No action or prosecution for the recovery of any ©faction penalty under this Act shall be commenced more than three years after the cause of action arises. Penalties for dealing with pirated copies SUMMARY REMEDIES 13. If any person — (a) makes for sale or hire any pirated copy of a work in which copyright subsists; or, (b) sells or lets for hire, or exposes, offers, or has in his possession for sale or hire any pirated copy of any such work; or, (c) distributes or exhibits in public any pirated copy of any such work; or, (d) imports for sale or hire into Canada any pirated copy of any such work: he shall, unless he proves that he acted innocently, be guilty of an offence under this Act and be liable on sum- mary conviction to a fine not exceeding twenty-five dollars for every copy dealt with in contravention of this section, but not exceeding two hundred dollars in respect of the , CANADIAN COPYRIGHT MEASURE 563 same transaction; or in the case of a second or subsequent offence, eitfier to such fine or to imprisonment with or with- out hard labour for a term not exceeding two months : Provided that a person convicted of an offence under Proviso as paragraph (b) of this subsection, who has not been pre- to certain viously convicted of any such offence and who proves that ^^^^ the copies of the work in respect of which the offence was committed had printed or marked thereon in some conspic- uous place a name and address purporting to be that of the printer or publisher, shall not be liable to any penalty un- der this section unless it is proved that the copies were to his knowledge pirated copies. (2 .) If any person makes or has in his possession any plate Penalty for for the purpose of making pirated copies of any work in making or which copyright subsists, or for private profit causes any possessing such work to be performed in public without the consent j^^g^ copies ■ of the owner of the copyright, he shall, unless he proves that he acted innocently, be guilty of an offence under this Act, and be liable on summary conviction to a fine not ex- ceeding two hundred dollars, or, in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months. (3.) The court before which any such proceedings are Destruction taken may in addition order that all copies of the work or of plate upon all plates in the possession of the offender, which appear to ""^ *•* it to be pirated copies or plates for the purpose of making pirated copies, be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit. 14. Where a court of summary jurisdiction is satisfied Seizure of by information on oath that there is reasonable ground for pirated believing that pirated copies of any work are being or about ^""^^g^ ®*°^ to be hawked or carried about, sold or offered for sale, it may g^^^^ ^^ issue an order authorising any constable or peace officer — gold and (a) to seize without further warrant any copies of the arrest of work which may be found being hawked or carried offender about, sold or offered for sale; 564 COPYRIGHT Execution of order for seizure and arrest Disposition of works seized Orders open to inspection Scope of order Newspaper or periodical excepted (b) to arrest without further warrant any person who in any street or public place sells or exposes or has in his possession for sale any pirated copies of the workj or who offers for sale any pirated copies of the work by personal canvass or by personally delivering advertise- ments or circulars. (2.) Where such an order has been made the person on whose application it was made may send a copy thereof (certified to be a true copy by the clerk of the court which made the order) to the chief constable or deputy chief con- stable for any district within which the court has jurisdic- tion, and thereupon any constable or peace officer may seize any such copies and arrest any such person in accord- ance with the terms of the order. (3.) Where the constable or- peace officer seizes any copies of a work in pursuance of such an order, he shall bring them before a court of summary jurisdiction, and that court, on proof that the copies are pirated, may order that they be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit. (4.) All copies of orders sent to a chief constable or deputy chief constable under this section shall be open to inspec- tion at all reasonable hours by any person without pay- ment of any fee, and any person may take copies of or make extracts from any such order. (5.) A single order under this section may be made ex- tending to several works. (6.) An order under this section shall not authorize — (a) the arrest of any person selling or offering for sale ; or, (b) the seizure of copies of any newspaper or other periodical publication merely be- cause it contains a pirated copy of a work, if such pirated copy is only an incidental feature and does not form a sub- stantial part of the newspaper or periodical. Search 15. A court of summary jurisdiction may, if satisfied by wamnts information on oath that there is reasonable ground for be- lieving that an offence punishable summarily under this Act CANADIAN COPYRIGHT MEASURE 565 is being committed on any premises, grant a search warrant authorising the constable or peace officer named therein to enter the premises between the hours of six of the clock in the morning and nine of the clock in the evening (and, if necessary, to use force in making such entry, whether by breaking open doors or otherwise) and to seize any copies of any work or any plates in respect of which he has rea- sonable ground for suspecting that an oifence under this Act is being committed, and may, on proof that the cop- ies or plates brought before the court in pursuance of the warrant are pirated copies or plates intended to be used for the purpose of making pirated copies, order that they be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit. IMPORTATION OF COPIES 16. Except as otherwise provided by this Act copies Importation made out of Canada of any work in which copyright sub- of copies of sists shall not be imported into Canada and shall be copyright deemed to be included in Schedule C to The Customs Tariff, and that Schedule shall apply accordingly. works 17. If a book in which there is subsisting copyright has If copyright been published in any part of His Majesty's dominions, owner other than Canada, and if it is proved to the satisfaction of 'icenses the Minister that the owner of the copyright has granted j^ Canada*"* a license to reproduce in Canada, from movable or other the Minister types, or from stereotype plates, or from electroplates, or may prohibit from lithograph stones, or by any process for facsimile re- importation production, an edition or editions of such book designed °'/'°*'fs for sale only in Canada, the Minister may, notwithstand- elsewhere ing anything in this Act, by order under his hand prohibit the importation into Canada, except with the written con- sent of the licensee, of any copies of such book printed else- where: Provided that two such copies may be specially Proviso imported for the bona fide use of any public free library or any university or college library, or for the library of any duly incorporated institution or society for the use of the members of such institution or society. 566 COPYRIGHT Suspension i8. The Minister may at any time in like manner, by or revocation order under his hand, suspend or revoke such prohibition of prohibition ^pQjj importation if it is proved to his satisfaction that — (ffl) the Ucense to reproduce in Canada has terminated or expired ; or, (jb) the reasonable demand for the book in Canada is not sufficiently met without importation; or, (c) the book is not, having regard to the demand there- for in Canada, being suitably printed or published ; or, (d) any other state of things exists on account of which it is not in the pubhc interest to further prohibit im- portation. Licensee to furnish copy of any edition if required Otherwise prohibition may be revoked 19. At any time after the importation of a book has been so prohibited, any person resident or being in Canada may apply either directly or through a book-seller or other agent, to the person so licensed to reproduce such book, for a copy of any edition of such book then on sale and rea- sonably obtainable in the United Kingdom or any other part of His Majesty's dominions and it shall thereupon be the duty of the person so licensed, as soon as reasonably maybe, to import and sell such copy to the person so apply- ing therefor, at the ordinary selling price of such copy in the United Kingdom, or such other part of His Majesty's dominions, with the duty and reasonable forwarding charges added. (2.) The failure or neglect, without lawful excuse, of the person so licensed to supply such copy within a reasonable time shall be a reason for which the Minister may, if he sees fit, suspend or revoke the prohibition upon importa- tion. Customs notified of prohibition Unlawful importation of books Forfeiture 20. The Minister shall forthwith inform the Depart- ment of Customs of any order made by him under this Act. 21. All books imported in contravention of any order, prohibiting such importation, made under the hand of the Minister, by the authority of this Act, may be seized by an officer of Customs, and shall be forfeited to the Crown and CANADIAN COPYRIGHT MEASURE 567 destroyed ; and any person importing, or causing or permit- Penalty ting the importation of any book in contravention of an order of the Minister shall, for each offence, be liable,upon summary conviction, to a penalty not exceeding one hun- dred dollars. REGISTRATION 22. The Minister shall cause to be kept, at the Depart- Registers of ment, books to be called the Registers of Copyrights, in copyrights which shall be entered the names or titles of works and the names of authors, and such other particulars as may be prescribed. (2.) The author or publisher of, or the owner of or other Registration person interested in the copyright in, any work shall cause of particulars the particulars respecting the work to be entered in the o^work register, before publication thereof or the performance or delivery thereof in public. (3.) In the case of an encyclopaedia, newspaper, review, Registration magazine or other periodical work, or work published in a °* serial series of books or parts, it shall not be necessary to make a P'i'>"c*tioM separate entry for each number or part, but a single entry for the whole work shall suffice. (4.) There shall also be kept at the Department such in- Indexes of dexes of the registers established under this section as may registers be prescribed. (5.) The registers and indexes established under this sec- Registers tion shall be in the prescribed form, and shall at all reason- f^^ indexes able times be open to inspection, and any person shall be ™ Prescnbed entitled to take copies of or make extracts from any such register, and the Minister shall, if so required, give a copy Certified of an entry in any such register certified by him to be a true copies of copy, and any such certificate shall be prima facie evidence ^°^^^ of the matters thereby certified. (6.) There shall be charged in respect of entries in regis- Fees ters the inspection of register's, taking copies of or making extracts from registers, and certificates under this section, the fees hereinafter prescribed. (7.) Any registration made under The Copyright Act Prior shall have the same force and effect as if made under this registrations Act. 568 COPYRIGHT periodical works Registration 23. Any literary work intended to be published in pam- of temporary phlet or book form, but which is first published in separate ""Py'^sW ™ articles in a newspaper or periodical in Canada, may be registered under this Act while it is so preUminarily pub- lished as a temporary copyright, if the title of the manu- script and a short analysis of the work are deposited at the Department with an application for registration in accord- ance with the prescribed form, and if every separate article so published is preceded by the words, "Registered in ac- cordance with the Copyright Act, 191 1:" Provided that the work, when published in book or pamphlet form, shall be subject, also, to the other requirements of this Act. Anonymous 24. If a book is published anonymously, it shall be suffi- publications cient to enter it in the name of the first publisher thereof, either on behalf of the unnamed author or on behalf of such first publisher, as the case may be. Application 25. The application for the registration of a copyright or for of a temporary copyright may be made in the name of the registration author or of his legal representatives, by any person pur- porting to be agent of such author or legal representatives. Unauthorized (2.) Any damage caused by a fraudulent or an erroneous assumption assumption of such authority shall be recoverable in any of agency court of competent jurisdiction. work in Department Deposit of 26. Application for registration of a copyright shall be application made in accordance with the prescribed form, and shall be ™i''^?*^^*'^ deposited at the Department together with three copies of the work if it is a book, map, chart, musical composi- tion, photograph, print, cut or engraving, and with a writ- ten description thereof if the work is a painting, drawing or a work of sculpture, and with one complete type-written copy thereof if the work is a dramatic work copies of which are not published. Weekly list 27. The Minister shall cause to be transmitted to the of registered Library of the Parliament of Canada and to the British works Museum a weekly list of all works registered under this Act retained CANADIAN COPYRIGHT MEASURE 569 together with one copy of each work deposited at the De- Copies partment: Provided that the Minister may retain at the transmitted Department such copies of deposited works as appear in f"^^._ his opinion proper, but a copy of any work so retained shall be transmitted to the Library of Parliament of Canada or to the British Museum upon receipt of a demand in writ- ing from the proper authority, such demand to be received by the Minister within six months after the date of regis- tration of the work. Any copy of a work retciined by the Minister as to which no demand is received within the time limited shall be returned to the owner of the copyright, or otherwise disposed of as to the Minister seems proper. SPECIAL PROVISIONS AS TO CERTAIN WORKS 28. In the case of a literary, dramatic or musical work Copyright in or engraving which has not been published, nor, in the case posttumous of a dramatic or musical work been performed in public, nor, in the case of a lecture, been delivered in pubUc, in the lifetime of the author, copyright shall, subject to the pro- visions of this Act as to first publication elsewhere than in Canada, subsist till publication, or performance or delivery in public, whichever may first happen, and for a term of fifty years thereafter. 29. In the case of a work of joint authorship copyright Works of shall subsist during the life of the author who first dies and Jojnt^ for a term of fifty years after his death, or during the life of the author who dies last, whichever period is the longer. authors 30. Where the work of an author is first published as an Collective article or other contribution in a collective work (that is to ^o'l^s say) : — (o) an encyclopaedia, dictionary, year book, or similar work; (6) a newspaper, review, magazine, or other similar periodical ; (c) a work written in distinct parts by different au- thors ; and the proprietor of the collective work is not by virtue of 570 COPYRIGHT tributors and proprietors Respective this Act or any assignment thereunder the owner of the rights of con- copyright in the article or contribution, then, subject to any agreement to the contrary, the owner of the copyright in each article or contribution shall retain his copyright therein, but the proprietor of the collective work shall at all times have the right of reproducing and authorising the reproduction of the work as a whole, and for a period of fifty years from the date of first publication of the collec- tive work shall have the sole right of reproducing and au- thorising the reproduction of the work as a whole, and shall be entitled to the same remedies in respect of the infringe- ment of the copyright in any part of the work as if he were the owner of the copyright. Copyright in photographs, records and perforated rolls 31. The term for which copyright shall subsist in photo- graphs, and in records, perforated rolls and other contri- vances by means of which a work may be mechanically per- formed or delivered, shall be fifty years from the making of the negative or plate, and the person who was owner of the original negative or plate from which the photo- graph or other contrivance was directly or indirectly de- rived at the time when such negative or plate was made shall be deemed to be the author of the work, and where such owner is a body corporate the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act ex- tends if it has established a place of business within such parts. Application of Act to registered designs Rtdes 32. This Act shall not apply to designs capable of being registered under The Trade Mark and Design Act, except designs which, though capable of being so registered, are not used or intended to be used as models or patterns to be multipUed by any industrial process. (2.) General rules under section 39 of The Trade Mark and Design Act, may be made for determining the condi- tions under which a design shall be deemed to be used for such purposes as aforesaid. CANADIAN COPYRIGHT MEASURE 571 EXISTING WORKS 33. Where any person is, immediately before the com- Copyright mencement of this Act, entitled to any such right in any in existing work specified in the first column of the First Schedule to ^°'^^' ^°^ this Act, or to any interest in such a right, he shall as from rithts*"*^ that date be entitled to the substituted right set forth in the second column of that Schedule, or to the same interest in such a substituted right, and to no other right or interest, and such substituted right or interest therein shall subsist for the term for which it would have subsisted if this Act had been in force at the date when the work was made, and the work had been one entitled to copyright thereunder: Provided that — Proviso (o) if the author of any work in which copyright sub- Rights of sists at the commencement of this Act has before that author date assigned the copyright or granted any interest therein for the whole term of the copyright, then at the date when but for the passing of this Act the right would have expired the corresponding right conferred by this Act shall, in the absence of express agreement, pass to the author of the work, and any interest therein created before the commencement of this Act and then subsisting shall determine; but the person who Rights of immediately before the date at which the right would assignee so have expired was the owner of the right or interest shall be entitled at his option (to be signified in writ- ing not more than one year nor less than six months before the last-mentioned date) either — (i) to an assignment of the right or the grant of a Assignment similar interest therein for the remainder of the term *<"■ remain- of the right for such consideration as, failing agree- ^"^ ° *®"° ment, may be determined by arbitration; or, (ii) without any such assignment or grant, to con- Reproduction tinue to reproduce or perform the work in like man- on payment ner as theretofore on the payment of such royalties to "' ^°^^ *'®* the author as, failing agreement, may be determined by arbitration : 572 COPYRIGHT Prior proceedings not affected Existing rights saved Rights in records, perforated rolls and contrivances Substituted rights acquired only under this Act Limitation of existing rights (b) nothing in this section shall afifect anything done be- fore the commencement of this Act; (c) where any person has, before the twenty-sixth day of April, nineteen hundred and eleven, taken any ac- tion or incurred any expenditure for the purpose of or with a view to the reproduction or performance of a work at a time when such reproduction or performance would, but for the passing of this Act, have been lawful, nothing in this section shall diminish or prejudice any right or interest arising from or in connection with such action or expenditure which are subsisting and valuable at the said date, unless the person who by virtue of this section becomes entitled to restrain such reproduction or performance agrees to pay such com- pensation as, failing agreement, may be determined by arbitration ; (d) the sole right of making and authorising the making of records, perforated rolls or other contrivances by means of which literary, dramatic or musical works may be mechanically performed shall not be enjoyed by the owner of the copyright in any literary, dra- matic, or musical work for the mechanical perfor- mance of which any such contrivances have been law- fully made within His Majesty's dominions by any person before the twenty-sixth day of April, nineteen hundred and eleven ; (e) where any person is, immediately before the com- mencement of this Act, entitled to any right in any work specified in the first column of the First Sched- ule to this Act or to any interest in such right, and such person does not satisfy the conditions conferring copyright laid down by this Act, he shall be entitled to no other right or interest, and such right shall sub- sist for the term for which it would have subsisted but for the passing of this Act. (2.) Subject to the provisions of this Act, copyright shall not subsist in any work made before the commencement of this Act, otherwise than under and in accordance with the provisions of this section. CANADIAN COPYRIGHT MEASURE 573 IMPERIAL RECIPROCITY 34. The Governor in Council may by order in council Application direct that this Act (except such part, if any, thereof as of Act to may be specified in the order and subject to such condi- w'^^ °* tions and limitations as may be specified) shall apply to resident in literary, dramatic, musical and artistic works the authors British whereof were at the time of the making of the work bona dominions fide residents in a part of His Majesty's dominions, other othet than than Canada, to which the order relates, or British sub- C*"**** jects resident elsewhere than in Canada: Provided that, before making an order in council under Proviso this section with respect to any part of His Majesty's dominions, the Governor in Council shall be satisfied that that part has made or has undertaken to make such pro- visions as it appears to the Governor in Council expedient to require for the protection of persons entitled to copy- right under this Act. INTERNATIONAL 35. The Governor in Council may, by order in council. Application direct that this Act (except such parts thereof, if any, as <>* Act to may be specified in the order) shall apply to literary, dra matic, musical and artistic works the authors whereof were foreTgn at the time of the making thereof subjects or citizens of or countries bona fide residents in a foreign country to which the order relates, and thereupon, subject to the provisions of this Act and of the order, this Act shall apply accordingly: Provided that — Proviso (i) before making an order in council under this section the Governor in Council shall be satisfied that that foreign country has made or has undertaken to make such provisions as it appears to the Governor in Coun- cil expedient to require for the protection of works entitled to copyright under this Act; (ii) the order in council may provide that the term of copyright within Canada shall not exceed that con- ferred by the law of the country to which the order relates; (iii) the order in council may provide that the enjoyment works of residents in Extent of order 574 COPYRIGHT of the rights conferred by this Act shall be subject to the accomplishment of such conditions and formali- ties as may be prescribed by the order; (iv) in applying the provisions of this Act as to existing works the order in council may make such modifica- tions as appear necessary, and may provide that nothing in those provisions as so applied shall be con- strued as reviving any right of preventing the produc- tion or importation of any translation in any case where the right has ceased. (2.) An order in council under this section may extend to all the several countries named or described therein. Evidence of foreign copyright Certified copies as evidence 36. Where it is necessary to prove the existence in a for- eign country to which an order in council under this Act applies of the copyright in any work, or the ownership of such right, an extract from a register, or a certificate, or other document stating the existence of such right, or the person who is the owner of such right, if authenticated by the official seal of a Minister of State of such foreign coun- try, or by the official seal or the signature of a British di- plomatic or consular officer acting in such country, shall be admissible as evidence of the facts named therein, and all courts shall take judicial notice of every such official seal and signature as is in this section mentioned, and shall ad- mit in evidence, without proof, the documents authenti- cated by it. EvroENCE 37. All copies or extracts certified by the Department shall be received in evidence without further proof and without production of the originals. Validity of doctunents 38. All documents executed and accepted by the Min- ister shall be held valid, so far as relates to official proceed- ings under this Act. FEES 39. The following fees shall be paid to the Minister before an application for any of the following purposes is received, that is to say: — CANADIAN COPYRIGHT MEASURE 575 Registering a copyright $1.00 Registration Registering a temporary copyright 0.50 fees Registering an assignment i.OO Certified copy of registration 0.50 Registering any decision of a court of justice, for every folio of 100 words 0.50 Certified copies of documents: — Fees for For first folio of one hundred words 0.25 Office copies For every subsequent folio (fractions of or under one-half folio not being counted, and of one-half or more being counted) o.io (2.) The said fees shall be in full of all services performed Fees in full under this Act by the Minister or by any person employed °^ ^^^ by him. ^^^•'^^ (3.) All fees received under this Act shall be paid over to Application the Minister of Finance and shall form part of the Consoli- dated Revenue Fund of Canada. (4.) No person shall be exempt from the payment of any No exemp- fee or charge payable in respect of any services performed tion from under this Act for such person. f®®^ CLERICAL ERRORS NOT TO INVALIDATE 40. Clerical errors which occur in the framing or copy- Clerical ing of an instrument drawn by any officer or employee in errors may or of the Department shall not be construed as invalidat- ^^ corrected ing such instrument, but when discovered they may be corrected under the authority of the Minister. RULES AND REGULATIONS 41. The Minister may, from time to time, subject to the Rules, approval of the Governor in Council, make such rules and regulations regulations, and prescribe such forms as appear to him necessary and expedient for the purposes of this Act; and such regulations and forms, circulated in print for the use of the public, shall be deemed to be correct for the pur- poses of this Act. and forms Abrogation of comnioa law rights 576 COPYRIGHT 42. No person shall be entitled to copyright or any simi- lar right in any literary, dramatic, musical or artistic work otherwise than under and in accordance with the provi- sions of this Act, or of any other statutory enactment for the time being in force. Orders in Council Publication Laid before Parliament 43. The Governor in Council may make orders for alter- ing, revoking, or varying any order in council made under this Act, but any order made under this section shall not affect prejudicially any rights or interests acquired or ac- crued at the date when the order comes into operation, and shall provide for the protection of such rights and in- terests. (2.) Every order in council made under this Act shall be published in The Canada Gazette, and shall be laid before Parliament as soon as may be after it is made, and shall have effect as if enacted in this Act. Repeal of certain enactments 44. Subject to the provisions of this Act, the enact- ments mentioned in the Second Schedule to this Act are, so far as they are operative in Canada, hereby repealed to the extent specified in the third column of that Schedule. Repeal 45. Chapter 70 of the Revised Statutes, 1906, and chap- ter 17 of the statutes of 1908, are repealed. Commence- 46. This Act shall come into force on a day to be named mentof Act by proclamation of the Governor General. CANADIAN COPYRIGHT MEASURE 577 FIRST SCHEDULE EXISTING RIGHTS EXISTING RIGHT SUBSTITUTED RIGHT (a) In the case of Works other than Dramatic and Musical Works. Copyright. Copyright as defined by this Act. (6) In the case of Musical and Dramatic Works. Copyright as defined by this Act. Both copyright and perfonning right. Copyright, but not performing right. Performing right, but not copy- right. Copyright as defined by this Act, except the sole right to per- form the work or any substan- tial part thereof in public. The sole right to perform the work in public, but none of the other rights comprised in copy- right as defined by this Act. For the purposes of this Schedule the following expres- sions, where used in the first column thereof, have the fol- lowing meanings: — "copyright," in the case of a work which according to the law in force immediately before the commence- ment of this Act has not been published before that date and statutory copyright wherein depends on pub- lication, includes the right at common law (if any) to restrain publication or other dealing with the work; "performing right," in the case of a work which has not been performed in public before the commencement of this Act, includes the right at common law (if any) to restrain the performance thereof in public. 578 COPYRIGHT SECOND SCHEDULE ENACTMENTS REPEALED SESSION AND CHAPTER SHORT TITLE EXTENT OF REPEAL 8 Geo. 2. c. 13. 7 Geo. 3. c. 38. 15 Geo. 3. c. 53- 17 Geo. 3. c. 57. 54 Geo. 3. c. 56. 3 Geo. 4. c. 15. 5 & 6 Will. 4. c. 65- 6 & 7 Will. 4. c. 59- 6 & 7 Will. 4. c. no. 5 & 6 Vict c. 45. 7&8Vict. u. 12. 10& II Vict. c. 95- 15 & 16 Vict. c. 12. 25 & 26 Vict. c. 68. 38 & 39 Vict. c. 12. 39 & 40 Vict. c. 36. The Engraving Copyright Act, 1734 The Engraving Copyright Act, 1767. The Copyright Act, 1775. The Prints Copyright Act, _i777- The Sculpture Copyright Act, 1814. The Dramatic Copyright Act, 1833. The Lectures Copyright Act, 1835. The Prints and Engravings Copyright (Ireland) Act, 1836. The Copyright Act, 1836. The Copyright Act, 1842. The International Copy- right Actj 1844. The Colonial Copyright, 1847. The International Copy- right Act, 1852. The Fine Arts Copyright Act, 1862. The International Copy- right Act, 1875. The Customs Consolida- tion Act, 1876. The whole Act. The whole Act. Sections two, four and five. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act, The whole Act. Sections one to six. In section eight the words "and pursuant "to anyAct for the "protection of copy- " right engravings." Sections nine to twelve. The whole Act. Section forty-two, from "Books wherein" to "such copyright will " expire." Sections forty-four, forty-five and one hundred and fifty-two. CANADIAN COPYRIGHT MEASURE 579 SESSION AND CHAPTER 45 & 46 Vict. c. 40. 49 & 50 Vict. c. 33. 51 & 52 Vict. c. 17- 52 & 53 Vict. c. 42. 2 Edw. 7. c. 15. 6 Edw. 7. c. 36. SHORT TITLE The Copyright (Musical Compositions) Act, 1882. The International Copy- right Act, 1886. The Copyright (Musical Compositions) Act, 1888. The Revenue Act, 1889. The Musical (Summary Proceedings) Copyright Act, 1902. The Musical Copyright Act, 1906. EXTENT OF REPEAL The whole Act. The whole Act. The whole Act. Section one, from " Books first pub- " lished " to " as pro- "vided in that sec- "tion." The whole Act. The whole Act. 8. AUSTRALIAN COPYRIGHT ACT, I905 (Assented to 21st December, 1905) Be it enacted by the King's Most Excellent Majesty, the Senate, and the House of Representatives of the Com- monwealth of Australia as follows: — Short title Commence- ment Parts Interpreta- tion PART I. — PRELIMINARY 1. Short Title. — This Act may be cited as the Copy- right Act, 1905. 2. Commencement. — This Act shall commence on a day to be fixed by Proclamation. 3. Parts. — This Act is divided as follows: — Part I. — Preliminary. Part II. — Administration. Part III. — Literary, Musical, and Dramatic Copyright. Part IV. — Artistic Copyright. Part V. — Infringement of Copyright. Part VI. — International and State copyright. Part VII. — Registration of Copyrights. Part VIII. — Miscellaneous. 4. Interpretation. — In this Act, unless the contrary in- tention appears — "Artistic work" includes — (a) Any painting, drawing, or sculpture; and (6) Any engraving, etching, print, lithograph, wood- cut, photograph, or other work of art produced by any process, mechanical or otherwise, by which impressions or representations of works of art can be taken or multiplied : "Author" includes the personal representatives of an author : "Book" includes any book or volume, and any part or division of a book or volume, and any article in a book or volume, and any pamphlet, periodical, sheet of let- AUSTRALIAN COPYRIGHT ACT 581 terpress, sheet of music, map, chart, diagram, or plan Inteipreta- separately pubUshed, and any illustration therein: tion "Dramatic work," in addition to being included in the definition of book, means any tragedy, comedy, play, drama, farce, burlesque, libretto, of an opera, enter- tainment, or other work of a like nature, whether set to music or otherwise, lyrical work set to music, or other scenic or dramatic composition: "Lecture" includes a sermon: "Musical work" in addition to being included in the de- finition of book, includes any combination of melody . and harmony, or either of them, printed, reduced to writing, or otherwise graphically produced or repro- , duced : "Periodical" means a review, magazine, newspaper, or other periodical work of a like nature : " Pirated artistic work " means a reproduction of an artis- tic work made in any manner without the authority of the owner of the copyright in the artistic work: "Pirated book" means a reproduction of a book made in any manner without the authority of the owner of the copyright in the book : "Portrait" includes any work the principal object of which is the representation of a person by painting, drawing, engraving, photography, sculpture, or any form of art: "Publish" and " Publication" in relation to a book refer to offer for sale or distribution, in each case with the privity of the author, so as to make the book accessible to the public: "The Registrar" means the Registrar of Copyrights or a Deputy Registrar of Copyrights: "State Copyright Act" means any State Act relating to the registration of the copyright or performing right, or lecturing right in books, or dramatic or musical works, or in artistic works, or fine art works, or in lec- tures. 5. What is simultaneous publication or performance. — For the purposes of this Act publication, performance, or 582 COPYRIGHT Simulta- neous pub- lication or peifoimance Blasphe- mous, etc., matter Application of common law State copy- right acts Rights under state laws delivery in the Commonwealth shall be deemed to be simultaneous with publication, performance, or delivery elsewhere if the period between the publications, perform- ances, or deliveries does not exceed fourteen days. 6. Blasphemous, &c., matter not protected. — No copy- right, performing right, or lecturing right shall subsist un- der this Act in any blasphemous, indecent, seditious, or libellous work or matter. 7. Application of the Common Law. — Subject to this and any other Acts of the Parliament, the Common Law of England relating to proprietary rights in unpublished lit- erary compositions, shall after the commencement of this Act, apply throughout the Commonwealth. 8. State Copyright Acts not to apply to copyright under this Act. — (i.) The State Copyright Acts so far as they relate to the copyright in any book, the performing right in any musiqal or dramatic work, the lecturing right in any lec- ture, or the copyright in any artistic or fine art work shall not apply to any book, dramatic or musical work, lecture, or artistic work in which copyright, performing right, or lecturing right, subsists under this Act. Saving of rights under State laws. — (2.) Subject to Part II. of this Act, nothing in this Act shall affect the applica- tion of the laws in force in any State at the commencement of this Act to any copyright or other right in relation to books or dramatic or musical works or lectures or artistic or fine art works acquired under or protected by those laws before the commencement of this Act. PART II. ■ADMINISTRATION Division I. — The Registrar and the Copyright Office Registrar 9. Registrar. — (i.) There shall be a Registrar of Copy- rights. (2.) The Governor-General may appoint one or more Deputy Registrars of Copyrights who shall, subject to the control of the Registrar of Copyrights, have all the powers conferred by this Act on the Registrar. 10. Copyright Office. — For the purposes of this Act an AUSTRALIAN COPYRIGHT ACT 583 office shall be established which shall be called the Copy- Copyright right Office. Office 11. Seal of Copyright Office. — There shall be a seal of Seal the Copyright Office, and impressions thereof shall be judicially noticed. Division 2. — The Transfer of the Administration of the State Copyright Acts 12. Transfer of administration. — The Governor-Gen- Transfer of eral may, by proclamation, declare that, from and after a administra- date specified in the proclamation, the administration of ^°'^ the State Copyright Acts of any State so far as they relate to the registration of the copyright in any book, the per- forming right in any musical or dramatic work, the lectur- ing right in any lecture, and the copyright in any artistic or fine art work, or to the registration of any assignment or grant of, or licence in relation to, any such right, shall be transferred to the Commonwealth and thereupon, so far as is necessary for the purposes of this section — (a) Effect of transfer of administration. Cf. Patents Act, Effect of 1903, 55. 18 and 19. — The State Copyright Acts of transfer the State shall cease to be administered by the State, and shall thereafter be administered by the Com- monwealth so far as is necessary for the purpose of completing then pending proceedings and of giving effect to then existing rights, and the Registrar shall collect for the State all fees which become paya- ble thereunder; and (6) all powers and functions under any State Copyright Act vested in the Governor of the State or in the Governor with the advice of the Executive Council of the State or in any Minister officer or authority of the State shall vest in the Governor-General or in the Governor-General in Council or in the Minister officer or authority exercising similar powers under the Commonwealth as the case requires or as is pre- scribed ; and (c) all records registers deeds and documents of the Copyright office of the State vested in or subject to 584 COPYRIGHT the control of the State shall, by force of this Act, be vested in and made subject to the control of the Commonwealth . PART III. — LITERARY, MUSICAL, AND DRAMATIC COPYRIGHT Copyright 13. Copyright in books. — (i.) The copyright in a book in books means the exclusive right to do, or authorize another per- son to do, all or any of the following things in respect of it: — (a) To make copies of it: (6) To abridge it: (c) To translate it: (d) In the case of a dramatic work, to convert it into a novel or other non-dramatic work: (e) In the case of a novel or other non-dramatic work, to convert into a dramatic work: and (/) In the case of a musical work, to make any new ad- aptation, transposition, arrangement, or setting of it, or of any part of it, in any notation. (2.) Copyright shall subsist in every book, whether the author is a British subject or not, which has been printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia in cases where type is not necessarily used, and has, after the commence- ment of this Act, been published in Australia, before or simultaneously with its first publication elsewhere. Peifonning 14. Performing right in dramatic and musical works. — right (i.) The performing right in a dramatic or musical work means the exclusive right to perform it, or authorise its performance in public. (2.) Performing right shall subsist in every dramatic or musical work, whether the author is a British subject or not, which has, after the commencement of this Act, been performed in public in Australia, before or simultaneously with its first performance in public elsewhere. Lecturing 15. Lecturing right in lectures. — (i.) The lecturing right right in a lecture means the exclusive right to deliver it, or authoKse its delivery, in public, and except as hereinafter provided, to report it. AUSTRALIAN COPYRIGHT ACT 585 (2.) Lecturing right shall subsist in every lecture, whe- ther the author is a British subject or not, which has, after the commencement of this Act, been delivered in public in Australia, before or simultaneously with its first delivery in public elsewhere. 16. Commencement of copyright, performing right, and lee- Commence- turing right. — (i.) The copyright in a book shall begin ment with its first publication in Australia. (2.) The performing right in a dramatic or musical work shall begin with its first performance in public in Aus- tralia. (3.) The lecturing right in a lecture shall begin with its first delivery in public in Australia. 17. Term of copyright, performing right, and lecturing Term right. — (i.) The copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture, shall subsist for the term of forty-two years or for the author's life and seven years whichever shall last the longer. (2.) Where the first publication of a book, the first per- formance in public of a musical or dramatic work, or the first delivery in public of a lecture takes place after the death of the author, the copyright, performing right, or lecturing right, as the case may be, shall subsist for the term of forty-two years. (3.) Where a book or a dramatic or musical work is writ- ten by joint authors the copyright and the performing right shall subsist for the term of forty-two years or their joint lives and the life of the survivor of them, and seven years, whichever shall last the longer. (4.) If a lecture is published as a book with the consent in writing of the owner of the lecturing right, the lecturing right shall cease. 18. Ownership in copyright, performing right, and lectur- Ownership ing right. — (i .) The author of a book shall be the first owner of the copyright in the book. (2.) The author of a dramatic work or musical work shall be the first owner of the performing right in the dra- matic or musical work. 586 COPYRIGHT Joint authors Separate authors Encyclo- paedia and similar works Copyright in periodicals (3.) The author of a lecture shall be first owner of the lecturing right in the lecture. 19. Ownership in the case of joint authors. — Where there are joint authors of a book, or of a dramatic or musical work, or of a lecture, the copyright or the performing right, or the lecturing right, as the case may be, shall be the pro- perty of the authors. 20. Separate authors. — Where a book is written in dis- tinct parts by separate authors and the name of each author is attached to the portion written by him, each author shall be entitled to copyright in the portion written by him in the same manner as if it were a separate book. 21. Encyclopadia and similar works. — The proprietor or projector of an encyclopaedia or other similar permanent work of reference who employs some other person for valu- able consideration in the composition of the whole or any part of the work shall be entitled to the copyright in the work in the same manner as if he were the author thereof. 22. Copyright in articles published in periodicals. — (i.) The author of any article, contributed for valuable consid- eration to and first published in a periodical, shall be en- titled to copyright in the article as a separate work, but so that — (a) he shall not be entitled to publish the article or au- thorise its publication until one year after the end of the year in which the article was first published and (6) his right shall not exclude the right of the proprietor of the periodical under this section. (2.) The proprietor of a periodical in which an article, which has been contributed for valuable consideration, is first published shall be entitled to copyright in the article, but so that — (a) he shall not be entitled to publish the article or au- thorise its publication except in the periodical in its original form of publication, and (6) his right shall not exclude the right of the author of the article, under this section. 23. Copyright in articles published in periodicals without AUSTRALIAN COPYRIGHT ACT 587 valuable consideration. — The author of any article con- Articles tributed without valuable consideration to, and first pub- without val- lished in, a periodical, shall be entitled to copyright in the "?^'® 1°°" article as a separate work. sideration 24. Copyright, &fc., to be personal property. — The copy- Copyright, right in a book, the performing right in a dramatic or musi- etc., personal cal work, and the lecturing right in a lecture shall be per- property sonal property, and shall be capable of assignment and of transmission by operation of law. 25. Copyright and other rights to be separate properties. — Copyright The copyright in a book, and the performing right in a dra- and other matic or musical work and the lecturing right in a lecture "^Ws shall be deemed to be distinct properties for the purposes ^^P"**® of ownership, assignment, licence, transmission, and all ^ °^^ other purposes. 26. Assignment of copyright. — The owner of the copy- Assignment right in a book, or of the performing right in a dramatic or musical work, or of the lecturing right in a lecture, may assign his right either wholly or partially and either gen- erally or limited to any particular place or period, and may grant any interest therein by licence ; but an assignment or grant shall not be valid unless it is in writing signed by the owner of the right in respect of which it is made or granted. 27. New editions. — Any second or subsequent edition New editions of a book containing material or substantial alterations or additions shall be deemed to be a new book, but so as not to prejudice the right of any person to reproduce a former edition of the book or any part thereof after the expiration of the copyright in the former edition. Provided that while the copyright in a book subsists no person, other than the owner of the copyright in the book or a person authorised by him, shall be entitled to publish a second or subsequent edition thereof. 28. Making of abridgment, &fc., for private use. — Copy- Abridg- right in a book shall not be infringed by a person making ments, etc., an abridgment or translation of the book for his private ^°^ pnvate use (unless he uses it publicly or allows it to be used pub- licly by some other person), or by a person making fair ex- tracts from or otherwise fairly dealing with the contents of 588 COPYRIGHT Translations or abridg- ments Failure of author to make trans- lation Copyright in translations Reservation of perform- ing right the book for the purpose of a new work, or for the purposes of criticism, review, or refutation, or in the ordinary course of reporting scientific information. 29. Translations or abridgments. — Where the author has parted with the copyright in his book and a transla- tion or abridgment of the book is made with the consent of the owner of the copyright by some person other than the author, notice shall be given in the title-page of every copy of the translation or abridgment that it has been made by some person other than the author. 30. Failure of author to make or cause translation of book. — Where a translation of a book into a particular language is not made within ten years from the date of the publica- tion of the book by the owner of the copyright or by some person by his authority — (a) Any person desirous of translating the book into that language may make an application in writing to the Minister for permission so to do: (6) The Minister may thereupon by notice in writing in- form the owner of the copyright of such application and request him to make or cause to be made a trans- lation of the book into that language within such time as the Minister deems reasonable or to show cause why such application should not be granted : (c) If the owner of the copyright fails to comply with such notice the Minister may grant such applica- tion. 31. Copyright in translations. — Copyright shall subsist in a lawfully-produced translation or abridgment of a book in like manner as if it were an original work. 32. Notice of reservation of performing right. — (i .) Where a dramatic or musical work is published as a book, and it is intended that the performing right is to be reserved, the owner of copyright, whether he has parted with the per- forming right or not, shall cause notice of the reservation of the performing right to be printed on the title page or in a conspicuous part of every copy of the book. (2.) Defendant's rights where no notice of reservation of pet' forming right. — Where — AUSTRALIAN COPYRIGHT ACT 589 (a) proceedings are taken for the infringement of the Defendant's performing right in a dramatic or musical work rights where published as a book, and °<* notice (b) the defendant proves to the satisfaction of the Court that he has in his possession a copy of the book con- taining the dramatic or musical work and that that copy was published with the consent of the owner of the copyright, and does not contain the notice required by this Act of the reservation of the per- forming right, judgment may be given in his favor either with or without costs cis the Court, in its discretion, thinks fit; but in any such case the owner of the performing right (if he is not the owner of the copyright) shall be entitled to recover from the owner of the copyright damages in respect of the injury he has incurred by the neglect of the owner of the copy- right to cause due notice to be given of the reservation of the performing right. 33. Report of lecture in a newspaper. — (i.) Unless the Report of reporting of a lecture is prohibited by a notice as in this lecture section mentioned, the lecturing right in a lecture shall not be infringed by a report of the lecture in a newspaper. (2.) The notice prohibiting the reporting of a lecture may be given — (a) orally at the beginning of the lecture; or (&) by a conspicuous written notice affixed, before the lecture is given, on the entrance doors of the build- in which it is given or in a place in the room in which it is given. (3.) When a series of lectures is intended to be given by the same lecturer on the same subject, one notice only need be given in respect of the whole series. PART IV. — ARTISTIC COPYRIGHT 34. Meaning of copyright. — The copyright in an artistic Artistic work means the exclusive right of the owner of the copy- copyright right to reproduce or authorise another person to repro- duce the artistic work, or any material part of it, in any manner, form, or size, in any material, or by any process, or for any purpose. 590 COPYRIGHT Commence- ment and tenn Ownership Portraits Photographs Engravings and prints Sale of paint- ing, etc. 35. Copyright in artistic works. — Copyright shall sub- sist in every artistic work whether the author is a British subject or not, which is made in Australia after the com- mencement of this Act. e 36. Commencement and term of artistic copyright. — The copyright in an artistic work shall begin with the making of the work, and shall subsist for the term of forty-two years or for the author's life and seven years whichever shall last the longer. 37. Ownership of copyright in artistic work. — The au- thor of an artistic work shall be the first owner of the copy- right in the work. 38. Copyright in portraits. — When an artistic work, be- ing a portrait, is made to order for valuable consideration, the person to whose order it is made shall be entitled to the copyright therein as if he were the author thereof. P- 39. Copyright in photographs. — (i.) When a photo- graph is made to order for valuable consideration the per- son to whose order it is made shall be entitled to the copy- right therein as if he were the author thereof. (2). Subject to sub-section (i) of this section, when a photograph is made by an employee on behalf of his em- ployer the employer shall be deemed to be the author of the photograph. . 40. Engravings and prints. — (i.) Subject to section thirty-four of this Act the engraver or other person who makes the plate or other instrument by which copies of an artistic work are multiplied shall be deemed to be the au- thor of the copies produced by means of the plate or instru- ment. (2.) When the plate or other instrument mentioned in this section is made by an employee on behalf of his em- ployer the employer shall be deemed to be the author of the copies produced by means of the plate or instru- ment. 41. Copyright in case of sale of painting, statue, or bust. (i.) — When the owner of the copyright in any artistic work being a painting, or a statue, bust, or other like work, disposes of such work for valuable consideration, but does AUSTRALIAN COPYRIGHT ACT 591 not assign the copyright therein, the owner of the copy- right (except as in this section mentioned) may in the ab- sence of any agreement in writing to the contrary make a replica of such work. Right of author to make replicas of statues, etc., in public Right to places. (2.) — When a statue, bust, or other like work, ™ake re- whether made to order or not, is placed or is intended to be P^*=*^ placed in a street or other like public place, the author may, in the absence of any agreement to the contrary, make replicas thereof. ^ 42. Artistic copyright is personal property. — The copy- Personal right in an artistic work shall be personal property, and property shall be capable of assignment and of transmission by operation of law. 43. Copyright and ownership in artistic works. — The Copyright copyright in an artistic work and the ownership of the ar- and owner- tistic work shall be deemed to be distinct properties for the ^^^ purposes of ownership, assignment, licence, transmission, and all other purposes. 44. Assignment of copyright. — The owner of the copy- Assignment right in an artistic work may assign his right wholly or par- tially and either generally or limited to any particular place or period and may grant any interest therein by li- cence; but an assignment or grant shall not be valid unless it is in writing signed by the owner of the copyright. PART V. — INFRINGEMENT OF COPYRIGHT 45. Infringement of rights under Act. — If any person in- Infringement fringes any right conferred by this Act in respect of the right in a book, the performing right in dramatic or musi- cal work, the lecturing right in a lecture, or the copyright in an artistic work, the owner of the right infringed may maintain an action for damages or penalties or profits, and for an injunction, or for any of those remedies. 46. Damages in case of performing right or lecturing right. Damages — In assessing the damages in respect of the infringement under per- of the performing right in a dramatic or musical work or f" "^^^ "' the lecturing right in a lecture, regard shall be had to the ^^^^ amount of profit made by the infringer by reason of the in- 592 COPYRIGHT Objection to title Limitation of actions Property in pirated works Penalties fringement, and to the amount of actual damage incurred by the owner of the performing or lecturing right. 47. Notice of objection to title. — The plaintiff in any ac- tion for the infringement of a right conferred by this Act shall be presumed to be the owner of the right which he claims, unless the defendant in his pleadings in defence pleads that the defendant disputes the title of the plaintiff, and states the grounds on which the plea is founded, and the name of the person, if any, whom the defendant alleges to be the owner of the right. 48. Limitation of actions. (Cf. 5-6 Vict. c. 45, s. 26.) — No action for any infringement of copyright, performing right, or lecturing right under this Act shall be maintain- able unless it is commenced within two years next after the infringement is committed. 49. Property in pirated books or artistic work. — All pi- rated books and all pirated artistic works shall be deemed to be the property of the owner of the copyright in the book or work and may, together with the plates, blocks, stone, matrix, negative, or thing, if any, from which they are printed or made, be recovered by him by action or other lawful method. 50. Penalties for dealing with pirated books. — If any per- son — (a) sells, or lets for hire, or exposes offers or keeps for sale or hire, any pirated book or any pirated artis- tic work; or (b) distributes, or exhibits in public, any pirated book or any pirated artistic work; or (c) imports into Australia any pirated book or any pi- rated artistic work, he shall be guilty of an offence against this Act, and shall be liable to a penalty not exceeding Five pounds for each copy of such pirated book or pirated artistic work dealt with in contravention of this section, and also to forfeit to the owner of the copyright every such copy so dealt with, and also to forfeit the plates, blocks, stone, matrix, nega- tive, or thing, if any, from which the pirated book or pi- rated artistic work was printed or made. AUSTRALIAN COPYRIGHT ACT 593 Provided that the whole penalties inflicted on any one offender in respect of the same transaction shall not ex- ceed Fifty pounds. Provided also that no person shall be convicted of an of- fence under this section if he proves to the satisfaction of the court at the hearing that he did not know, and could not with reasonable care have ascertained, that the book was a pirated book or the work was a pirated artistic work. 51. Liability in respect of use of theatre. — Where a dra- Liability as matic or musical work is performed in a theatre or other to theatre place in infringement of the performing right of the owner of that right, the proprietor tenant or occupier who per- mitted the theatre or place to be used for the performance shall be deemed to have infringed the performing right and shall be guilty of an offence against this Act, and shall be liable to a penalty not exceeding Five pounds for each such offence and the court may, in addition to the penalty, order the defendant to pay to the owner of the performing right in respect of each such infringement a sum by way of dam- ages to the amount of Ten pounds, or to such amount as the court deems equal to the profits made by the perfor- mance of the work, whichever sum is greater. Provided that no person shall be convicted of an offence under this section if he proves to the satisfaction of the court at the hearing that he did not know and could not with reasonable care have ascertained that the dramatic or musical work was performed in infringement of the per- forming right of the owner of that right. 52. Search warrant and seizure of pirated copies. — (i.) Search A justice of the peace may upon the application of the warrant and owner of the copyright in any book or in any artistic work seizure or of the agent of such owner appointed in writing : — (a) If satisfied by evidence that there is reasonable ground for believing that pirated books or pirated artistic works are being sold, or offered for sale — issue a warrant, in accordance with the form pre- scribed, authorising any constable to seize the pi- rated books or pirated artistic works and to bring them before a court of summary jurisdiction. 594 COPYRIGHT Delivery np of pirated works (jb) If satisfied by evidence that there is reasonable ground for believing that pirated books or pirated artistic works are to be found in any house, shop, or other place — issue a warrant, in accordance with the form prescribed, authorising any constable to search between sunrise and sunset, the place where the pirated books are supposed to be, and to seize and bring them or any books or artistic works rea- sonably suspected to be pirated books or pirated artistic works before a court of summary jurisdic- tion. (2.) A court of summary jurisdiction may, on proof that any books or artistic works brought before it in pursuance of this section are pirated books or pirated artistic works, order them to be destroyed or to be delivered up, subject to such conditions, if any, as the court thinks fit, to the owner of the copyright in the book or artistic work. 53. Power of owner of copyright to require delivery to him of pirated books and works. — (i.) The owner of the copyright in any book or artistic work, or the agent of such owner appointed in writing, may by notice, in accordance with the prescribed form, re- quire any person to deliver up to him any pirated reproduc- tion of the book or work, and every person to whom such notice has been given, and who has any pirated reproduc- tion of the book or work in his possession or power, shall deliver up the pirated reproduction of the book or work in accordance with the notice. Penalty: Ten Pounds. (2.) A person shall not give any notice in accordance with this section without just cause. Penalty: Twenty pounds. (3.) In any prosecution under sub-section (2) of this sec- tion the defendant shall be deemed to have given the no- tice without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of giving the notice he was the owner of the copyright in the book or ar- tistic work or was the agent of such owner appointed in writing, and had reasonable ground to believe that the per- AUSTRALIAN COPYRIGHT ACT 595 son to whom the notice was given had pirated reproduc- tions of the book or work in his possession or power. 54. — Power of owner of performing right to forbid perfor- Power to mance in infringement of his right. — (i.) The owner of the forbid per- performing right in a musical or dramatic work, or the f"™**"!*® agent of the owner appointed in writing, may, by notice in writing in accordance with the prescribed form, forbid the performance of the musical or dramatic work in infringe- ment of his right, and require any person to refrain from performing or taking part in the performance of the musi- cal or dramatic work, and every person to whom a notice has been given in accordance with this section shall refrain from performing or taking part in the performance of the musical or dramatic work specified in the notice in in- fringement of the performing right of such owner. Penalty: Ten pounds. (2.) A person shall not give any notice in pursuance of this section without just cause. Penalty : Twenty pounds. (3.) In any prosecution under sub-section (2) of this sec- tion, the defendant shall be deemed to have given the no- tice without just cause unless he proves, to the satisfaction of the court at the hearing, that at the time of giving the notice he was the owner of the performing right in the musi- cal or dramatic work, or the agent of the owner appointed in writing, and had reasonable ground to believe that the person to whom the notice was given was about to perform or take part in the performance of the musical or dramatic work in infringement of the performing right of the owner. 55. Penalty for false representations in notices. — Any False repre- person, who in any notice given in pursuance of this Act, sentations makes a representation, which is false in fact and which he knows to be false or does not believe to be true, that he is {a) the owner of the copyright in any book or artistic work, or (&) the owner of the performing right in a musical or dramatic work, or (c) the agent of any such owner, shall be guilty of an offence against this Act, 596 COPYRIGHT Penalty: Two years' imprisonment. Request to 56. Request to police to seize pirated books and works. — P**^"^ (i.) The owner of the copyright in any book or artistic work or the agent of such owner appointed in writing may, in accordance with the prescribed form, request that any pirated reproductions of the book or work be seized by the police, and may lodge the request at any police station. (2.) Any police constable in the town or district in which the police station is situated (whether in the service of the Commonwealth or a State), may, at any time in the day time within seven days after the request was so lodged, seize all pirated reproductions of the book or work men- tioned in the notice, and all reproductions of the book or work which he has reasonable ground to believe are pirated reproductions, found by him in the possession of any per- son other than the owner of the copyright in the book or work. (3.) Every police constable who seizes any books or works in pursuance of this section shall forthwith bring all such books or works before a court of summary jurisdic- tion. (4.) A court of summary jurisdiction may, on the appli- cation of any person interested, make such order for the disposal of the books or works as he thinks just. (5.) A person shall not lodge any request at any police station in accordance with this section without just cause. Penalty : Twenty pounds. (6.) In any prosecution under sub-section (5) of this sec- tion the defendant shall be deemed to have lodged the re- quest without just cause unless he proves, to the satisfac- tion of the court at the hearing, that at the time of lodging the request he was the owner of the copyright in the book or artistic work, or was the agent of such owner appointed in writing and had reasonable ground to believe that pi- rated reproductions of the book or work were being unlaw- fully sold, or let for hire, or exposed or offered or kept for sale or hire, or distributed, or exhibited in public, in the town or district in which the police station is situated. 57. Application of penalties. — Where proceedings for AUSTRALIAN COPYRIGHT ACT 597 any penalty under this Act are instituted by the owner of Application the copyright in any book or in any artistic work or by the o* penalties owner of the artistic work, the penalty shall be paid to him by way of compensation for the injury he has sustained. In any other case the penalty shall be paid to the Consoli- dated Revenue Fund. 58. Aiders and abettors. — Whoever aids, abets, coun- Aiders and sels, or procures, or by act or omission is in any way, di- abettors rectly or indirectly, knowingly concerned in the commis- sion of any offence against this Act, shall be deemed to have committed that offence, and shall be punishable accord- ingly. 59. Limitation of actions in court of summary jurisdiction. Limitation — Proceedings may be instituted in any court of summary "* <=°'^ °^ jurisdiction for the recovery of any penalty under this Act, ^^^^-n but no such proceedings shall be instituted after the expira- tion of six months from the date of the offence in respect of which the penalty is imposed. 60. Appeal from courts of summary jurisdiction. — An Appeal appeal shall lie from any conviction or order (including any dismissal of any information, complaint, or application, of a court of summary jurisdiction, exercising jurisdiction with respect to any offence or matter under this Act, to the court and in the manner and time provided by the law of the State in which the proceedings were instituted in the case of appeals from courts of summary jurisdiction in that State. 61. Importation of pirated works. — (i.) The following Importation goods are prohibited to be imported : — of pirated {a) All pirated books in which copyright is subsisting in ''*"'^® Australia (whether under this Act or otherwise): and (&) All pirated artistic works in which copyright is sub- sisting in Australia (whether under this Act or otherwise). (2.) All pirated books and pirated artistic works im- ported into Australia contrary to this section shall be for- feited and may be seized by any officer of Customs. (3.) Subject to this Act the provisions of the Customs 598 COPYRIGHT Act, 1901, shall apply to the seizureand forfeitureof pirated books and artistic works under this section to the same ex- tent as if they were prohibited imports under that Act. (4.) The provisions of this section shall not apply to any book or artistic work unless the owner of the copyright therein or his agent has given written notice to the Minister of the existence of the copyright and of its term. (5.) A notice given to the Commissioners of Customs of the United Kingdom, by the owner of the copyright or his agent, of the existence of the copyright in a book or artistic work and of its term, and communicated by the said Com- missioners to the Minister shall be deemed to have been given by the owner to the Minister. PART VI. INTERNATIONAL AND STATE COPYRIGHT Protection of interna- tional and state copyrights Registration of interna- tional copyriglit 62. Protection in Australia of international and State copyright. — The owner of any copyright or performing right in any literary, musical, or dramatic work or artistic work entitled to protection in Australia by virtue of any Act of the ParUament of the United Kingdom or entitled to protection in any State by virtue of any State Copyright Act in force at the commencement of this Act shall on ob- taining a certificate of the registration of his copyright or performing right under this part of this Act have the same protection in the Commonwealth against the infringe- ment of his copyright or performing right as the owner of any copyright or performing right under this Act. 63. Registration of international copyright. — (i.) The owner of any copyright or performing right who desires to obtain the benefit of this part of this Act may, in manner and in accordance with the form prescribed, make applica- tion to the Registrar for the registration of his copyright or performing right. (2.) — ^The Registrar may thereupon, and on being satis- fied by proof of the prescribed particulars and on payment of the prescribed fee, register the copyright or performing right and issue to the applicant a certificate of registration in accordance with the prescribed form. AUSTRALIAN COPYRIGHT ACT 599 PART VII. — REGISTRATION OF COPYRIGHTS 64. Copyright Registers.— The following Registers of Copyright copyrights shall be kept by the Registrar at the Copyrights registers Office: — The Register of Literary Copyrights. The Register of Fine Arts Copyrights, The Register of International and State Copyrights. 65. Method of registration. — The owner of any copyright Method of performing right or lecturing right under this Act may registration obtain registration of his right in the manner prescribed. 66. Registration of assignments and transmissions. — Registration When any person becomes entitled to any copyright per- of assign- forming right or lecturing right under this Act by virtue of ™*"*s f"<* any assignment or transmission, or to any interest therein -ims""^" by licence, he may obtain registration of the assignment, transmission, or licence in the manner prescribed. 67. How registration effected. — The registration of any How regis- copyright performing right or lecturing right under this tration Act, or of any assignment or transmission thereof or of any ®"®"^'' interest therein by licence, shall be effected by entering in the proper register, the prescribed particulars relating to the right, assignment, transmission, or licence. 68. Trusts not registered. — (i.) No notice of any trust Trusts not expressed, implied, or constructive shall be entered in any registered Register of Copyrights under this Act or be receivable by the Registrar. (2.) Subject to this section, equities in respect of any copyright performing right or lecturing right under this Act may be enforced in the same manner as equities in respect of other personal property. 69. Register to be evidence. — Every Register of copy- Register to rights under this Act shall be prima facie evidence of the ^^ evidence particulars entered therein and documents purporting to be copies of any entry therein or extracts therefrom certified by the Registrar and sealed with the seal of the Copyrights Office shall be admissible in evidence in all Federal or State courts without further proof or production of the originals. 70. Certified copies. — Certified copies of entries in any 6oo COPYRIGHT Rectification of register by the court Certified register under this Act or of extracts therefrom shall, on copies payment of the prescribed fee, be given to any person ap- plying for them. Inspection 71 . Inspection of register. — Each register under this Act of register shall be open to public inspection at all convenient times on payment of the prescribed fee. Correction 72. Correction of register. — The registrar may, in pre- of register scribed cases and subject to the prescribed conditions, amend or alter any register under this Act by — (o) correcting any error in any name, address, or par- ticular; and (&) entering any prescribed memorandum or particular relating to copyright or other right under this Act. 73. Rectification of register by the court. — (i.) Subject to this Act the Supreme Court of any State or a judge thereof may, on the application of the Registrar or of any person aggrieved, order the rectification of any register under this Act by — (o) the making of any entry wrongly omitted to be made in the register; or Qj) the expunging of any entry wrongly made in or re- maining on the register; or (c) the correction of any error or defect in the register. (2.) An appeal shall lie to the High Court from any or- der for the rectification of any register made by a Supreme Court or a Judge under this section. No suit 74- Owner cannot sue before registration. — (i.) The before owner of any copyright or performing right under this Act registration qj. Qf a,ny interest therein by licence shall not be entitled to bring any action or suit or institute any proceedings for any infringement of the copyright or performing right un- less such right or interest has been registered in pursuance of this Act. (2.) When such right or interest has been registered the owner thereof may, subject to this Act, bring actions or suits or institute proceedings for infringements of the copy- right or performing right, whether those infringements happened before or after the registration, t (3.) This section shall not affect the right of the owner AUSTRALIAN COPYRIGHT ACT 6oi of the lecturing right in a lecture to bring actions or suits or institute proceedings for infringements of his lecturing right. 75. Delivery of books to registrar.— (i.) Every person Deposit applying for the registration of the copyright in any book shall deliver to the Registrar two copies of the whole book with all maps and illustrations belonging thereto, finished and coloured in the same manner as the best copies of the book are published and bound, sewed, or stitched together, and on the best paper on which the book is printed. (2.)^ Every person applying for the registration of the copyright in any work of art shall deliver to the Registrar one copy of the work of art or a photograph of it. (3.) The Registrar shall refuse to register the copyright in any book or work of art until subsections (i) and (2) of this section have been complied with. (4.) One copy of each book delivered to the Registrar in pursuance of this section shall be forwarded by him to the librarian of the Parliament, and the other copy shall be re- tained by the Registrar, until otherwise prescribed. 76. False representation to registrar. Patents Act, 1903, s. False repre- 112. — No person shall wilfully make any false statement sentation or representation to deceive the Registrar or any officer in the execution of this part of this Act, or to procure or in- fluence the doing or omission of any thing in relation to this part of this Act or any matter thereunder. Penalty: Three years' imprisonment. PART VIII. — MISCELLANEOUS 77. Provision against suppression of books. — If the Gov- Suppression ernor-General is satisfied that the owner of the copyright o^ books in any book, or of the performing right in any dramatic work or musical work, or of the lecturing right in any lecture, has refused, after the death of the author, to re- publish or allow repubUcation of the book, or the public performance of the dramatic or musical work, or the pub- lication as a book of the lecture, and that by reason thereof the book, dramatic work, musical work, or lecture is with- held from the public, he may grant any person applying for 602 COPYRIGHT it a licence to republish the book, or to perform the dra- matic work, or musical work, or to publish the lecture as a book, in such manner and subject to such conditions as to the Governor-General seem fit. Award of 78. Power to award costs. — In any action or proceeding costs taken in any court under this Act, the court shall have power to award costs at its discretion. Regulations 79. Regulations. — The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be pre- scribed for giving effect to this Act, or for the conduct of any business relating to the Copyrights Office. Ill INTERNATIONAL COPYRIGHT UNION: CON- VENTIONS 9. BERNE CONVENTION, 1886, with Paris amend- ments, 1896, in italics [omissions bracketed]. Article I The contracting States are constituted into an Un- ion for the protection of the rights of authors over their literary and artistic works. Article IV The expression "literary and artistic works" com- prehends books, pamphlets, and all other writings ; dra- matic or dramatico-musical works, musical compositions with or without words; works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topo- graphy, architecture, or sci- ence in general; in fact, every production whatsoev- er in the literary, scientific, or artistic domain which can be published by any mode of impression or reproduction. Union to pro- tect literary and artistic works ID. BERLIN CONVENTION, 1908, with references to parallel articles of Berne- Paris Convention. Article i The contracting States are constituted into an Un- ion for the protection of the rights of authors over their literary and artistic works. Article 2 The expression " literary Definition of and artistic works" in- "literary and eludes all productions in "^'f**^, the literary, scientific or artistic domain, whatever the mode or form of repro- duction, such as : books, pamphlets and other writ- ings; dramatic or drama- tico-musical works; chore- graphic works and panto- mimes, the stage directions {"miseen seine") of which are fixed in writing or other- wise; musical compositions with or without words ; drawings, paintings, works of architecture and sculp- ture ; engravings and litho- graphs; illustrations; geo- 6o4 COPYRIGHT Works of architecture protected Choregraphic works pro- tected Translations, arrange- ments, and adaptations protected Paris II, i (a.) In the countries of the Union in which protec- tion is accorded not only to architectural designs, but to the actual works of archi- tecture, those works are ad- mitted to the benefit of the provisions of the Convention of Berne and of the present additional act. Protocol 2. Asregards Article IX, itis agreed that those coun- tries of the Union whose leg- islation implicitly includes choregraphic works amongst dramatico-musical works, expressly admit the former works to the benefits of the Convention concluded this day. It is, however.understood that questions which may arise on the application of this clause shall rest within the competence of the re- spective tribunals to decide. Article VI Authorized translations are protected as original works. They consequently enjoy the protection stipu- lated in Articles II and III as regards their unauthor- ized reproduction in the countries of the Union. graphical charts ; plans, sketches and plastic works relating to geography, to- pography, architecture, or the sciences. Translations, adapta- tions, arrangements of mu- sic and other reproductions transformed from a literary or artistic work, as well as compilations from different works, are protected as or- iginal works without preju- INTERNATIONAL CONVENTIONS 605 It is understood that, in the case of a work for which the translating right has fallen into the public do- main, the translator cannot oppose the translation of the same work by other writers. Protocol I. As regards Article IV, it is agreed [that those countries of the Union where the character of ar- tistic works is not refused to photographs, engage to admit them to the benefits of the Convention con- cluded to-day, from the date of its coming into effect. They are, however, not bound to protect the authors of such works fur- ther than is permitted by their own legislation, ex- cept in the case of interna- tional engagements already existing, or which may here- after be entered into by them.] Paris II, i (b.) Photographic works, and those obtained by similar processes, are admitted to the benefit of the provisions of these acts, in so far as the New trans- lations by other writers dice to the rights of the au thor of the original work. The contracting coun^ tries are pledged to secure protection in the case of the works mentioned above. Works of art applied to Works of art industry are protected so applied to far as the domestic legisla- '*>dustry tion of each country allows. Article 3 The present Convention Photographic applies to photographic works pro- works and to works ob- tained by any process an- alogous to photography. The contracting countries are pledged to guarantee protection to such works. tected 6o6 COPYRIGHT Photograph of work of art pro- tected Authors to. enjoy in countries of the Union the rights granted to natives domestic legislation allows this to be done, and according to the measure of protection which it gives to similar na- tional works. [Protocol i, par. 2] It is understood that an authorized photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention and the addi- tional act, for the same pe- riod as the principal right of reproduction of the work it- self subsists, and within the limits of private arrange- ments between those who have legal rights. Article II Authors of any one of the countries of the Union, or their lawful representatives, shall enjoy in the other coun- tries for their works [whe- ther published in one of those countries or unpub- lished], either not published or published for the first time in one of those countries, the rights which the respective laws do now or may here- after grant to natives. Article 4 Authors within the juris- diction of one of the coun- tries of the Union enjoy for their works, whether un- published or published for the first time in one of the countries of the Union, such rights, in the coun- tries other than the country of origin of the work, as the respective laws now ac- cord or shall hereafter ac- cord to natives, as well as the rights specially ac- corded by the present Con- vention. INTERNATIONAL CONVENTIONS 607 The enjoyment of these rights is subject to the ac- compHshment of the condi- tions and formalities pre- scribed by law in the coun- try of origin of the work, and cannot exceed in the other countries the term of pro- tection granted in the said country of origin. [Paris Declaration] I. By the terms of para- graph 2 of Article II of the Convention, the protection granted by the aforemen- tioned Act depends solely on the accomplishment in the country of origin of the work of the conditions and formali- ties that may be prescribed by the legislation of that coun- try. The same rule applies to the protection of the photo- graphic works mentioned in No. I (b), of the modified "Protocole de ClSture." The enjoyment and the exercise of such rights are not subject to any formal- ity; such enjoyment and such exercise are independ- ent of the existence of pro- tection in the country of origin of the work. Conse- quently, apart from the stipulations of the present Convention, the extent of the protection, as well as the means of redress guaranteed to the author to safeguard his rights, are regulated exclusively ac- cording to the legislation of the country where the protection is claimed. No formali- ties required [Conditions and formali- ties of coun- try of origin] [Art. II, PAR. 3, 4] The country of origin of the work is that in which the work is first published, or if such publication takes place simultaneously in sev- eral countries of the Union, that one of them in which the shortest term of protec- tion is granted by law. The following is consid- Definition of ered as the country of origin country of of the work: for unpub- °"^"^ lished works, the country to which the author be- longs; for published works, the country of first publi- cation, and for works pub- lished simultaneously in 6o8 COPYRIGHT For unpublished works the country to which the au- thor belongs is considered the country of origin of the work. Paris Declaration Published 2. By "published" works works must be understood works actually issued to the public in one of the countries of the Union. Consequently, the representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of a work of art, do not constitute publi- cation in the senseof theaf ore- mentioned Acts. Authors of countries of the Union first publish- ing in an- other country several countries of the Union, the country among them whose legislation grants the shortest term of protection. For works published simultaneously in a country outside of the Union and in a country within the Union, it is the latter country which is ex- clusively considered as the country of origin. By published works {"(Buvres publiees") must be understood, according to the present Convention, works which have been is- sued ("ceuvres editees"). The representation of a dramatic or dramatico- musical work, the perform- ance of a musical work, the exhibition of a work of art and the construction of a work of architecture do not constitute publica- tion. Article 5 Authors within the juris- diction of one of the coun- tries of the Union who pub- lish their works for the first time in another country of the Union, have in this lat- ter country the same rights as national authors. INTERNATIONAL CONVENTIONS 609 Article III [The stipulations of the present Convention apply equally to the publishers of literary and artistic works published in one of the countries of the Union, but of which the authors belong to a country which is not a party to the Union.] Authors, not subjects of one of the countries of the Union, but who shall have published or caused to be published for the first time, their literary or artistic works in one of those countries, shall enjoy for those works the protection accorded by the Berne Con- vention, and by the present additional act. [Art. II, PAR. 2] The enjoyments of these rights . . . cannot exceed in the other countries the term of protection granted in the said country of origin. Article 6 Authors not within the jurisdiction of any one of the countries of the Union, who publish for the first time their works in one of these countries, enjoy in that country the same rights as national authors, and in the other countries of the Union the rights accorded by the present Convention. Authors not belonging to countries of the Union also pro- tected if they first publish in a Union country Article 7 The term of protection granted by the present Convention comprises the life of the author and fifty years after his death. In case this term, how- ever, should not be adopted uniformly by all the coun- tries of the Union, the dura- tion of the protection shall be regulated by the law of the country where protec- tion is claimed, and can not exceed the term granted in the country of origin of the work. The contracting countries will consequently Term of pro- tection life and 50 years If not adopt- ed, laws of country to govern term 6io COPYRIGHT Term for photo- graphic, post- humous, .anonymous or pseudony- mous works Exclusive right of translation [Art. II, ADD. PAR.] Posthumous works are inclvded amongst protected works. Article V Authors of any of the countries of the Union, or their lawful representatives, shall enjoy in the other countries the exclusive right of making or authorizing the translation of their works [until the expiration of ten years from the publication of the original work in one of the countries of the Un- ion] during the whole duration of the right in the original work. But the exclusive right of translation shall cease to exist when the author shall not have made use of it within a period of ten years from the first publication of the origi- be required to apply the provision of the preceding paragraph only to the ex- tent to which it agrees with their domestic law. For photographic works and works obtained by a process analogous to pho- tography, for posthumous works, or anonymous, or pseudonymous works, the term of protection is regu- lated by the law of the coun- try where protection is claimed, but this term may not exceed the term fixed in the country of origin of the work. Article 8 Authors of unpublished works within the jurisdic- tion of one of the countries of the Union, and authors of works published for the first time in one of these countries enjoy in the other countries of the Union dur- ing the whole term of the right in the original work the exclusive right to make or to authorize the transla- tion of their works. INTERNATIONAL CONVENTIONS 6ii nal work, by publishing or causing to be published in one of the countries of the Union, a translation in the language for which protection shall be claimed. For works published in incomplete parts ("livrai- sons") the period of ten years commences from the date of publication of the last part of the original work. For works composed of several volumes published at intervals, as well as for bulletins or collections ("ca- hiers") published by liter- ary or scientific societies, or by private persons, each volume, bulletin, or collec- tion is, with regard to the period of ten years, consid- ered a separate work. In the cases provided for by the present article, and for the calculation of the period of protection, the 31st of December of the year in which the work was published is admitted as the date of publication. Article VII Serial stories (" romans- feuilletons"), including nov- els, published in newspapers or periodicals of one of the countries of the Union, can- Works pub- lished in incomplete parts Works pub- lished in sev- eral volumes Article 9 Serial stories (romans- Serials and feuilletons), novels and all other works otherworks, whether liter- "mews- . -c ^. ^. papers or ary, scientific or artistic, periodicals whatever may be their sub- protected 6l2 COPYRIGHT articles not be reproduced, in original or in translation, in the other countries, without the author- ization of their authors or of their lawful representatives. Reproduction [Articles from newspapers of newspaper or periodicals published in "' any of the countries of the Union may be reproduced in original or in translation in the other countries of the Union, unless the authors or publishers have expressly forbidden it. For periodi- cals it is sufficient if the pro- hibition is made in a general manner at the beginning of each number of the periodi- cal.] This applies equally to other articles in newspapers. or periodicals, whenever the authors or publishers shall have expressly declared in the paper or periodical in which they may have published them, that they forbid their reproduction. For periodicals it is sufficient if the prohibi- tion is made in a general way, at the beginning of each num- ber. In the absence of prohibi- tion, reproduction will be per- mitted on condition of indi- cating the source. This prohibition cannot in any case apply to articles ject, published in newspa- pers or periodicals of one of the countries of the Union, may not be reproduced in the other countries without the consent of the authors. With the exception of se- rial stories and of novels ("tZej romans-feuilletons et des nouvelles") any news- paper article may be repro- duced by another news- paper if reproduction has not been expressly forbid- den. The source, however, must be indicated . The con- firmation of this obligation shall be determined by the legislation of the country where protection is claimed. The protection of the pre- sent Convention does not INTERNATIONAL CONVENTIONS 613 of political discussion, [or to the reproduction of news of the day or current topics,] to the news of the day, or to current topics. Article VIII As regards the liberty of extracting portions from lit- erary or artistic works for use in publications destined for educational or scientific purposes or for chrestoma- thies, the matter is to be de- cided by the legislation of the different countries of the Union, or by special arrange- ments existing or to be con- cluded between them. Article IX The stipulations of Arti- cle II apply to the public representation of dramatic or dramatico-musical works whether such works be pub- lished or not. Authors of dramatic or dramatico - musical works, or their lawful representa- tives, are, during the exist- ence of their exclusive right of translation, equally pro- tected against the unauthor- ized public representation of translations of their works. apply to news of the day or News matter to miscellaneous news hav- not protected ing the character merely of press information. Article 10 As regards the liberty of Extracts extracting portions from lit- fro°i Uterary erary or artistic works for °'^ "''stic use in publications destined for educational or scientific purposes or for chrestoma- thies, the matter is to be de- cided by the legislation of the different countries of the Union, or by special ar- rangements existing or to be concluded between them. Article ii The stipulations of the present Convention apply to the public representa- tion of dramatic or dra- matico-musical works and to the public performance of musical works, whether these works are published or not. Authors of dramatic or dramatico-musical works are protected, during the term of their copyright in the original work, against the unauthorized public re- presentation of a transla- tion of their works. Representa- tion of dra- matic or dra- matico-mu- sical works Representa- tion of trans- lations 6i4 COPYRIGHT Notice of prohibition of perform- ance not required Adaptations, etc., consid- ered as in- fringements The stipulations of Arti- cle II apply equally to the public performance of un- published musical works, or of published works in which the author has expressly de- clared on the title page or commencement of the work that he forbids the public performance. Article X Unauthorized indirect ap- propriations of a literary or artistic work of various kinds such as adaptations, arrangements of music, etc., are specially included amongst the illicit repro- ductions to which the pre- sent Convention applies, when they are only the re- production of a particular work, in the same form, or in another form, with non-essential alterations, or abridgements, so made as not to confer the character of a new original work. In order to enjoy the protection of this article, authors, in publishing their works, are not obliged to prohibit the public re- presentation or public per- formance of them. Article 12 Unauthorized indirect ap- propriations of a literary or artistic work of various kinds such as adaptations, arrangements of music, transformations of a ro- mance or novel or of a poem into a theatrical piece and vice versa, etc., are specially included amongst the illicit reproductions to which the present Convention applies when they are only the re- production of such work in the same form or in another form with non-essential al- terations, or abridgements, so made as not to confer the character of a new original work. Paris Declaration 3. The transformation of a novel into a play, or of a play into a novel, comes under the stipulations of Article X. INTERNATIONAL CONVENTIONS 615 [Article X, par. 2] It is agreed that, in the application of the present article, the tribunals of the various countries of the Union will, if there is occa- sion, take into account limi- tations of their respective laws. Protocol 3. It is understood that the manufacture and sale of instruments forthemechan- ical reproduction of musical airs which are copyright, shall not be considered as constituting an infringe- ment of musical copyright. Article 13 Authors of ■ musical works have the exclusive right to authorize: (i) the adaptation of these works to instruments serving to reproduce them mechani- cally; (2) the pubUc per- formance of the same works by means of these instruments. The limitations and con- ditions relative to the ap- plication of this article shall be determined by the domestic legislation of each country in its own case; but all limitations and conditions of this na- ture shall have an effect strictly limited to the country which shall have adopted them. The provisions of par- agraph I have no retroac- tive effect, and therefore are not applicable in a country of the Union to works which, in that coun- Adaptation of musical works to mechanical instruments Each coun- try to regu- late for itself the manner in which Convention shall apply Provision not retroac- tive 6i6 COPYRIGHT Importation of mechani- cal musical appliances Right of reproduc- tion by cine- matograph protected Cinemato- graphic pro- ductions protected try, shall have been law- fully adapted to mechani- cal instruments before the going into force of the present Convention. The adaptations made by virtue of paragraphs 2 and 3 of this article and imported without the au- thorization of the parties interested into a country where they are not lawful, may be seized there. Article 14 Authorsof literary, scien- tific or artistic works have the exclusive right to au- thorize the reproduction and the public representa- tion of their works by means of the cinematograph. Cinematographic pro- ductions are protected as literary or artistic works when by the arrangement of the stage effects or by the combination of inci- dents represented, the au- thor shall have given to the work a personal and origi- nal character. Without prejudice to the rights of the author in the original work, thereproduc- tion by the cinematograph of a literary, scientific or artistic work is protected as an original work. INTERNATIONAL CONVENTIONS 617 The preceding provisions Also any apply to the reproduction analogous or production obtained by Production any other process analog- ous to that of the cinemato- graph. Article XI In order that the authors of works protected by the present Convention shall, in the absence of proof to the contrary, be considered as such, and be consequent- ly admitted to institute pro- ceedings against piracies be- fore the courts of the various countries of the Union, it will be sufficient that their name be indicated on the work in the accustomed manner. For anonymous or pseu- donymous works, the pub- lisher whose name is indi- cated on the work is enti- tled to protect the rights belonging to the author. He is, without other proof, re- puted the lawful represen- tative of the anonymous or pseudonymous author. It is, nevertheless, agreed that the tribunals may, if necessary, require the pro- duction of a certificate from the competent authority to the effect that the formali- ties prescribed by law in the Article 15 In order that the authors of works protected by the present Convention shall, in the absence of proof to the contrary, be considered as such, and be consequent- ly admitted to institute pro- ceedings against pirates be- fore the courts of the various countries of the Union, it will be sufficient that their name be indicated on the work in the accustomed manner. For anonymous or pseu- donymous works, the pub- lisher whose name is indi- cated on the work is enti- tled to protect the rights belonging to the author. He is, without other proof, re- puted the lawful represen- tative of the anonymous or pseudonymous author. Author's name on work as proof of authorship Publisher of anonymous or pseudony- mous works considered as represen- tative of author 6i8 COPYRIGHT Seizure of pirated copies country of origin have been accomplished, as contem- plated in Article II. Article XII Pirated works may be seized [on importation into] by the competent authorities of those countries of the Union where the original work enjoys legal protec- tion. Seizure to be made ac- cording to the laws of each country Each govern- ment to exercise supervision The seizure shall take place conformably to the domestic law of each State. Article XIII It is understood that the provisions of the present Convention cannot in any way derogate from the right belonging to the Govern- ment of each country of the Union to permit, to control, or to prohibit, by measures of domestic legislation or police, the circulation, rep- resentation, or exhibition of any works or productions in regard to which the compe- tent authority may find it necessary to exercise that right. Article i6 All infringing works may be seized by the competent authorities of the countries of the Union where the ori- ginal work has a right to legal protection. Seizure may also be made in these countries of reproductions which come from a country where the copyright in the work has terminated, or where the work has not been pro- tected. The seizure shall take place conformably to the domestic law of each State. Article 17 The provisions of the pre- sent Convention cannot in any way derogate from the right belonging to the Gov- ernment of each country of the Union to permit, to con- trol, or to prohibit, by measures of domestic legis- lation or police, the circu- lation, representation, or exhibition of any works or productions in regard to which the competent au- thority may find it neces- sary to exercise that right. INTERNATIONAL CONVENTIONS 619 Article XIV Under the reserves and conditions to be determined by common agreement, the present Convention applies to all works which at the moment of its coming into force have not fallen into the public domain in the coun- try of origin. Protocol 4. The common agree- ment alluded to in Article XIV of the Convention is established as follows : The application of the Convention and of the addi- tional act to works which have not fallen into the pub- lic domain in the country of origin at the time when [it comes] these acts came into force, shall operate accord- ing to the stipulations on this head which may be con- tained in special conven- tions either existing or to be concluded. In the absence of such stipulations between any countries of the Union, the Article 18 The present Convention applies to all works which, at the moment of its coming into force, have not fallen into the public domain of their country of origin be- cause of the expiration of the term of protection. But if a work by reason of the expiration of the term of protection which was previously secured for it has fallen into the pub- lic domain of the coun- try where protection is claimed, such work will not be protected anew. This principle will be ap- plied in accordance with the stipulations to that effect contained in the special Conventions either existing or to be concluded between countries of the Union, and in default of such stipulations, its appli- cation will be regulated by each country in its own case. Convention to apply to all works not in public domain Special con- ventions and domestic legislation may govern 620 COPYRIGHT Application to transla- tion Provisions to apply to new accessions More exten- sive rights may be granted by domestic legislation respective countries shall regulate, each for itself, by its domestic legislation, the manner in which the prin- ciple contained in Article XIV is to be applied. The stipulations of Article XIV of the Convention of Berne and of the present num- ber of the "Protocole de Cld- ture " apply equally to the ex- clusive right of translation, as granted by the present additional act. The above-mentioned tem- porary provisions are appli- cable in case of new acces- sions to the Union. More exten- sive rights may be secured by special treaties Article XV It is understood that the Governments of the coun- tries of the Union reserve to themselves respectively the right to enter into separ- The preceding provisions apply equally in the case of new accessions to the Union and where the term of pro- tection would be extended by the application of Arti- cle 7. Article 19 The provisions of the present Convention do not prevent a claim for the ap- plication of more favorable provisions which may be enacted by the legislation of a country of the Union in favor of foreigners in general. Article 20 The governments of the countries of the Union re- serve the right to make between themselves special treaties, when these treaties INTERNATIONAL CONVENTIONS 621 ate and particular arrange- ments between each other, provided always that such arrangements confer upon authors or their lawful rep- resentatives more extended rights than those granted by the Union, or embody other stipulations not con- trary to the present Con- vention. Additional Article The Convention con- cluded this day in no wise affects the maintenance of existing conventions be- tween the contracting States, provided always that such conventions con- fer on authors, or their law- ful representatives, rights more extended than those secured by the Union, or contain other stipulations which are not contrary to the said Convention. Protocol 7. The present Final Pro- tocol, which shall be ratified with the Convention con- cluded this day, shall be considered as forming an in- tegral part of the said Con- vention, and shall have the same force, effect, and dura- tion. would confer upon authors more extended rights than those accorded by the Union, or when they con- tain other stipulations not conflicting with the present Convention. The provi- sions of existing treaties which answer the aforesaid conditions remain in force. Convention not to affect existing conventions conferring more ex- tended lights Protocol in- tegral part of Convention 622 COPYRIGHT Article XVI Bureau of An International Office the Interna- jg established, under the tional Union ^^me of "Office of the In- ternational Union for the Protection of Literary and Artistic Works." Under con- trol of Switzerland This Office, of which the expenses will be borne by the Administrations of all the countries of the Union, is placed under the high au- thority of the Superior Ad- ministration of the Swiss Confederation, and works under its direction. The functions of this Office are determined by common ac- cord between the countries of the Union. Protocol Organization 5- The organization of the International Office, es- tablished in virtue of Article XVI of the Convention, shall be fixed by a regula- tion which shall be drawn up by the Government of the Swiss Confederation. The official language of the International Office will be French. Language of Office to be Fiencb Article 21 The International Office instituted under the name of " Bureau of the Inter- national Union for the Pro- tection of Literary and Artistic Works" (Bureau de r Union internationah pour la protection des ceuvres litte- raires et artistigues) is main- tained. This Bureau is placed under the high authority of the Government of the Swiss Confederation, which controls its organization and supervises its working. The official language of the International Office is French. INTERNATIONAL CONVENTIONS 623 The International Office will collect all kinds of in- formation relative to the protection of the rights of authors over their literary and artistic works. It will arrange and publish such information. It will study questions of general utility likely to be of interest to the Union, and, by the aid of documents placed at its disposal by die different administrations, will edit a periodical publication in the French language treat- ing questions which con- cern the Union. The gov- ernments of the countries of the Union reserve to themselves the faculty of authorizing, by .common accord, the publication by the Office of an edition in one or more other lan- guages, if experience should show this to be requisite. The International Office will always hold itself at the disposal of members of the Union, with the view to fur- nish them with any special information they may re- quire relative to the protec- tion of literary and artistic works. The Director of the Inter- Article 22 The International Office collects all kinds of inform- ation relative to the protec- tion of the rights of authors over their literary and ar- tistic works. It arranges and pubHshes such informa- tion. It studies questions of general utility likely to be of interest to the Union, and, by the aid of docu- ments placed at its disposal by the different administra- tions, edits a periodical pub- lication in the French lan- guage treating questions which concern the Union. The governments of the countries of the Union re- serve to themselves the faculty of authorizing, by common accord, the publi- cation by the Office of an edition in one or more other languages, if experience should show this to be re- quisite. The International Office must always hold itself at the disposal of members of the Union, with the view to furnish them with any spe- cial information they may require relative to the pro- tection of literary and ar- tistic works. The Director of the In- Duties of In- ternational Office Will furnish information as to copyright 624 COPYRIGHT Annual re- port of Di- rector of In- ternational Bureau Expenses of the Interna- tional Office to be shared by contract- ing States Method of sharing expenses national Bureau . . . will make an annual report on his administration, which shall be communicated to all the members of the Union. The expenses of the Office of the International Union shall be shared by the con- tracting States. Unless a fresh arrangement be made, they cannot exceed a sum of sixty thousand francs a year. This sum may be increased by the decision of one of the Conferences pro- vided for in Article XVII. The share of the total ex- pense to be paid by each countryshall be determined by the division of the con- tracting and acceding States into six classes, each of which shall contribute in the proportion of a certain number of units, viz. : First class 25 units Second class .... 20 units Third class 15 units Fourth class .... 10 units Fifth class 5 units Sixth class 3 units These coefficients will be multiplied by the number of States of each class, and the total product thus obtained ternational Bureau makes an annual report on his ad- ministration, which is com- municated to all the mem- bers of the Union. Article 23 The expenses of the Of- fice of the International Union are shared by the contracting States. Unless a fresh arrangement be made, they cannot exceed a sum of sixty thousand francs a year. This sum may be increased by the decision of one of the Con- ferences provided for in Art- icle 24. The share of the total expense to be paid by each country is determined by the division of the contract- ing and acceding States into six classes, each of which contributes in the proportion of a certain num- ber of units, viz. : First class 25 units Second class .... 20 units Third class 15 units Fourth class .... 10 units Fifth class 5 units Sixth class 3 units These coefficients are multiplied by the number of States of each class, and the total product thus obtained INTERNATIONAL CONVENTIONS 625 will give thenumberof units by which the total expense is to be divided. The quo- tient will give the amount ofthe unity of expense. Each State will declare, at the time of its accession, in which of the said classes it desires to be placed. The Swiss Administra- tion will prepare the budget of theOffice.superintend its expenditure, make the nec- essary advances, and draw up the annual account, which shall be communi- cated to all the other Ad- ministrations. Article XVII The present Convention may be submitted to revi- sions in order to introduce therein amendments calcu- lated to perfect the system of the Union. Questions of this kind, as well as those which are of in- terest to the Union in other respects, will be considered in Conferences to be held successively in the countries of the Union by delegates of the said countries. Protocol (5.) The Administration ofthe country where a Con- ference is about to be held, gives the number of units by which the total expense is to be divided. The quo- tient gives the amount of the unity of expense. Each State will declare, at the time of its accession, in which of the said classes it desires to be placed. The Swiss Administra- tion prepares the budget of the Office, superintends its expenditure, makes the nec- essary advances, and draws up the annual account, which shall be communi- cated to all the other Ad- ministrations. Article 24 The present Convention may be subjected to revi- sion in order to introduce therein amendments calcu- lated to perfect the system of the Union. Questions of this kind, as well as those which are of interest to the Union in other respects, are consid- ered in Conferences to be held successively in the countries of the Union by delegates of the said coun- tries. The Administration of the country where a Con- ference is about to be held, prepares the programme of the same with the assistance Swiss Ad- ministration to prepare the budget of the Interna- tional Office, etc. Revision of Convention Future con- ferences Country where a con- ference is to be held to prepare programme 626 COPYRIGHT will prepare the programme of the Conference with the assistance of the Interna- tional Ofifice. The Director of the In- ternational Office will at- tend the sittings of the Con- to participate fe^ences, and will take part in the discussion without a deliberative voice. Director of the Interna- tional Office Alterations of Conven- tion must be by unanimous consent Next Con- ference to be held at Paris Accession of other countries [Art. XVII, par. 3] It is understood that no alteration in the present Convention shall be binding on the Union except by the unanimous consent of the countries comprising it. Protocol 6. The next Conference shall be held at Paris be- tween four and six years from the date of the coming into force of the Conven- tion. The French Government will fix the date within these limits after having consult- ed the International Office. Article XVIII Countries which have not become parties to the pre- sent Convention, and which grant by their domestic law the protection of rights se- cured by this Convention, shall be admitted to accede of the International Office. The Director of the Inter- national Office attends the sittings of the Conferences, and takes part in the dis- cussion without a delibera- tive voice. No alteration in the pre- sent Convention is binding on the Union except by the unanimous consent of the countries comprising it. Article 25 The States outside of the Union which assure legal protection of the rights which are the object of the present Convention, may accede to it upon their re- quest. INTERNATIONAL CONVENTIONS 627 thereto on request to that effect. Such accession shall be notified in writing to the Government of the Swiss Confederation, who will communicate it to all the other countries of the Union. Such accession shall im- ply full adhesion to all the clauses and admission to all the advantages provided by the present Convention. Article XIX Countries acceding to the present Convention shall also have the right to accede thereto at any time for their colonies of foreign possessions. They may do this either by a general declaration comprehending all their colonies or possessions within' the accession, or by specially naming those comprised therein, or by Such accession shall be notified in writing to the Government of the Swiss Confederation, who will communicate it to all the other countries of the Union. Such accession shall im- May substi- ply full adhesion to all the ^^^ clauses and admission to all ^^^2^ °* the advantages provided conventions by the present Convention. It may, however, indicate such provisions of the Con- vention of September 9, 1886, or of the Additional Act of May 4, 1896, as it may]be judged necessary to substitute provisionally, at least, for the corresponding provisions of the present Convention. Article 26 The contracting countries Accession for have the right to accede at colonies or anytime to the present Con- |,°3^, vention for their colonies or foreign possessions. possessions They may do this either by a general declaration comprehending all their col- onies or possessions within the accession, or by spe- cially naming those com- prised therein, or by simply 628 COPYRIGHT simply indicating which are excluded. those Present Con- vention to replace Beine Con- vention and Paris Acts But Berne Convention remains in force be- tween coun- tries not signatory to present Convention Signatory States may declare themselves bound by former Con- ventions upon cer- tain points Article XXI Convention The present Convention to be ratified shall be ratified, and the indicating those which are excluded. This declaration shall be made known in writing to the Government of the Swiss Confederation, and by the latter to all the others. Article 27 The present Convention shall replace, in the relations between the contracting States, the Convention of Berne of September 9, 1886, including the Additional Ar- ticle and the Final Protocol of the same day, as well as the Additional Act, and the Interpretative Declaration of May 4, 1896. The con- ventional acts above-men- tioned shall remain in force in the relations with the States which do not ratify the present Convention. The States signatory to the present Convention may, at the time of the ex- change of ratifications, de- clare that they intend, upon such or such point, still to remain bound by the pro- visions of the Conventions to which they have previ- ously subscribed. Article 28 The present Convention shall be ratified, and the INTERNATIONAL CONVENTIONS 629 ratifications exchanged at Berne, within the space of one year at the latest. Protocol 7. It is agreed that, as re- gards the exchange of rati- fications contemplated in Article XXI , each contract- ing party shall give a single instrument, which shall be deposited, with those of the other States, in the Govern- ment archives of the Swiss Confederation. Each party shall receive in exchange a copy of the procbs-verbal of the exchange of ratifica- tions, signed by the pleni- potentiaries present. Article XX The present Convention shall be put in force three months after the exchange of the ratifications, and shall remain in effect for an indefinite period until the termination of a year from the day on which it may have been denounced. [Such denunciation shall be made to the Government authorized to receive ac- cessions, and shall only be effective as regards the country making it, the Con- vention remaining in full force and effect for the ratifications exchanged at BerUn, not later than the first of July, 1910. Each contracting party Exchange of shall send, for the exchange ratifications of ratifications, a single in- strument, which shall be de- posited, with those of the other countries, in the arch- ives of the Government of the Swiss Confederation. Each party shall receive in return a copy of the prochs- verbal of the exchange of ratifications, signed by the Plenipotentiaries who shall have taken part therein. Article 29 The present Convention shall be put in force three months after the exchange of the ratifications, and shall remain in effect for an indefinite period until the termination of a year from the day on which it may have been denounced. Convention to talie effect thiee months after exchange of ratifications Denuncia- tion of Convention 630 COPYRIGHT Accession of other coun- tries to Paris Acts Paris Acts to be ratified other countries of the Union.] This denunciation shall be addressed to the Govern- ment of the Swiss Confede- ration. It shall only take ef- fect in respect of the country which shall have made it, the Convention remaining oper- ative for the other countries of the Union. Paris III The countries of the Union which have not become par- ties to the present Additional Act and Declaration shall be allowed to accede thereto at any time, on their request to that effect. The same rule shall apply to the countries which may eventually accede either to the Convention of the gih September, 1886, or to the Convention or to the Additional Act or to the Declaration of the ^th May, 1896. It shall be sufficient for the purpose if a notifica- tionis addressed in writing to the Swiss Federal Council, who will, in turn, notify this accession to the other Govern- ments. Paris IV The present Additional Act and Declaration shall have the same force and du- This denunciation shall be addressed to the Gov- ernment of the Swiss Con- federation. It shall only take effect in respect of the country which shall have made it, the Convention remaining operative for the other countries of the Union. INTERNATIONAL CONVENTIONS 631 ration as the Convention of the gth September, 1886. These shall be ratified, and the ratification shall be ex- changed at Paris in the form adopted for that Convention, as soon as possible, and •within a year at the latest. Either shall come into force between the countries who have ratified it three months after this exchange. Article 30 , The States which intro- duce into their legislation the term of protection of fifty years,* provided for by Article 7, paragraph i, of the present Convention, shall make it known to the Government of the Swiss Confederation by a written notification which shall be communicated at once by that Government to all the other countries of the Union. It shall be the same for such States as shall renounce any reservations made by them in virtue of Articles 25, 26, and 27. Adoption of term of life and 50 years to be notified Notice shall be given of renounce- ment of any reservations In testimony of which. Signature the respective Plenipoten- tiaries have signed the pre- » Article 7 provides for a gen- eral term of protection for life and fifty years. 632 COPYRIGHT sent Convention and have attached thereto their seals. Date of sign- Done at Berlin, the thir- ing, Novem- teenth of November, one ber 13, 1908 thousand nine hundred eight, in a single copy, which shall be deposited in the archives of the Government of the Swiss Confederation, and of which copies, proper- ly certified, shall be sent through diplomaticchannels to the contracting countries. IV PAN AMERICAN UNION: CONVENTIONS II. MONTEVIDEO CONVENTION, 1 889 Treaty on Literary and Artistic Copyright Adopted January ii, 1889 Article i The contracting States promise to recognize and protect Union to pro- the rights of literary and artistic property, according to the *®<=t literary provisions of the present treaty. ^"^ artistic property Article 2 The author of any literary or artistic work, and his sue- Authorsshall cessors, shall enjoy in the contracting States the rights enjoy rights accorded him by the law of the State in which its original secured in publication or production took place. orig^^ ° Article 3 The author's right of ownership in a literary or artistic Definition of work shall comprise the right to dispose of it, to publish it, copyright to convey it to another, to translate it or to authorize its translation, and to reproduce it in any form whatsoever. Article 4 No State shall be obliged to recognize the right to liter- Term not to ary or artistic property for a longer period than that allowed exceed that to authors who obtain the same right in that State. This "^g^"*"^ period may be limited to that prescribed in the country where it originates, if such period be the shorter. Article 5 By the expression literary or artistic works is understood all books, pamphlets, or other writings, dramatic or dra- 634 COPYRIGHT "literary and artistic work " Defimtion of matico-musical works, chorographies, musical compositions with or without words, drawings, paintings, sculptures, engravings, photographs, lithographs, geographical maps, plans, sketches, and plastic works relating to geography, topography, architecture, or to [the sciences in general; and finally every production in the field of literature or art which may be published in any way by printing or reproduction. Article 6 Translation The translators of works of which a copyright either rights does not exist or has expired, shall enjoy with respect to their translations the rights declared in Article 3, but they shall not prevent the publication of other translations of the same work. Article 7 Newspaper Newspaper articles may be reproduced upon quoting the articles t)ublication from which they are taken. From this provi- sion articles relating to the sciences or arts, and the repro- duction of which shall have been prohibited by the authors are excepted. Article 8 Addresses Speeches pronounced or read in deliberative assemblies, before tribunals of justice, or in public meetings, may be published in the public press without any authorization whatsoever. Article 9 Under the head of illicit reproductions shall be classed all indirect, unauthorized appropriations of a literary or ar- tistic work, which may be designated by different names as adaptations, arrangements, etc., etc., and which are no more than a reproduction without presenting the character of an original work. Article 10 Authority The rights of authorship shall be allowed, in the absence recognized of proof to the contrary, in favor of the persons whose names or pseudonyms shall be borne upon the literary or artistic works in question. If the authors wish to withhold their names, they should Infringe- ments defined PAN AMERICAN CONVENTIONS 635 inform the editors that the rights of authorship belong to them. Article ii Those who usurp the right of literary or artistic pro- Each gov- perty Shall be brought before the courts and tried accord- ernment to ing to the laws of the country in which the fraud may have ^^^'cise been committed. supervision Article 12 The recognition of the right of ownership of literary and Immoral artistic works shall not prevent the contracting States works from preventing by suitable legislation the reproduction, publication, circulation, representation, or exhibition of all works which may be considered contrary to good morals. Article 13 The simultaneous ratification of all the contracting na- Ratification tions shall not be necessary to the effectiveness of this treaty. Those who adopt it will communicate the fact to the Gov- ernments of the Argentine Republic and the Eastern Re- public of Uruguay, who will inform the other contracting nations. This formality will take the place of an exchange. Article 14 The exchange having been made in the manner pre- Indefinite scribed in the foregoing article, this treaty shall remain in period force for an indefinite period after that act. Article 15 If any of the contracting nations should deem it advis- Withdraw- able to be released from this treaty, or introduce modifica- bIs tions in it, said nation shall so inform the rest; but it shall not be released until two years after the date of notifica- tion, during which time measures will be taken to effect a new arrangement. Article 16 The provisions of Article 13 are extended to all na- Adherences tions who, although not represented in this Congress, may desire to adopt the present treaty. 636 COPYRIGHT Signatories The seven countries represented and whose delegates signed the Montevideo treaty were: Argentina, Bolivia, Brazil, Chile, Paraguay, Peru, Uruguay. But the conven- tion was ratified only by Argentina, Paraguay, Uruguay, Peru and Boliva, and Brazil and Chile did not become par- ticipants. Participation of Belgium, France, Italy and Spain in this convention was accepted by Argentina and Paraguay, but apparently not bv the other countries. 12. MEXICO CITY CONVENTION, I902 Convention to protect Literary and Artistic Pro- perty, SIGNED AT Mexico, January 27, 1902 Article i The signatory States constitute themselves into a Union Union topro- for the purpose of recognizing and protecting the rights of t^ct Uterary literary and artistic property, in conformity with the stipu- ^^ ^^^'^ lations of the present Convention. property Article 2 Under the term "literary and artistic works" are com- Definition prised books, manuscripts, pamphlets of all kinds, no mat- "* "literary ter what subject they may treat of and what may be the «°^^artistic number of their pages; dramatic or melodramatic works; choral music and musical compositions, with or without words; designs, drawings, paintings, sculpture, engravings, photographic works ; astronomical and geographical globes; plans, sketches, and plastic works, relating to geography or geology, topography or architecture, or any other science; and, finally, every production in the literary and artistic field which may be pubUshed by any method of impression or reproduction. Article 3 The copyright to literary or artistic work consists in the Definition of exclusive right to dispose of the same, to publish, sell, and copyright translate the same, or to authorize its translation, and to reproduce the same in any manner either entirely or par- tially. The authors belonging to one of the signatory countries, Exclusive or their assigns, shall enjoy in the other signatory coun- rigWof tries and for the time stipulated in Article 5 the exclusive translation right to translate their works or to authorize their transla- tion. 638 COPYRIGHT Application for copyright and deposit of two copies One addi- tional copy to be deposited, for each country Copies and certificates of registra- tion to be transmitted Authors shall enjoy rights secured in country of origin for like term Works in parts or in several vol- umes Country of first publica- tion country of origin Article 4 In order to obtEiin the recognition of the copyright of a work,, it is indispensable that the author or his assigns or legitimate representative, shall address a petition to the official department which each Government may designate, claiming the recognition of such right, which petition must be accompanied by two copies of his work, said copies to remain in the proper department. If the author or his assigns should desire that this copy- right be recognized in any other of the signatory countries, he shall attach to his petition a number of copies of his work equal to that of the countries he may therein desig- nate. The said department shall distribute the copies men- tioned among those countries, accompanied by a copy of the respective certificate, in order that the copyright of the author may be recognized by them. Any omissions which the said department may incur in this respect shall not give the author or his assigns any rights to present claims against the State. Article 5 The authors who belong to one of the signatory coun- tries, or their assigns, shall enjoy in the other countries the rights which their respective laws at present grant, or in the future may grant, to their own citizens, but such right shall not exceed the term of protection granted in the country of its origin. For the works composed of several volumes which are not published at the same time, as well as for bulletins or installments of publications of literary or scientific socie- ties or of private parties, the term of property shall com- mence to be counted from the date of the publication of each volume, bulletin, or installment. Article 6 The country in which a work is first published shall be considered as the country of its origin, or, if such publica- tion takes place simultaneously in several of the signatory countries, the one whose laws establish the shortest period PAN AMERICAN CONVENTIONS 639 of protection shall be considered as the country of its origin. Article 7 Lawful translations shall be protected in the same man- Translations ner as original works. The translators of works in regard protected to which there exists no guaranteed right of property, or the right of which may have become extinguished, may secure the right of property for their translations, as estab- lished in Article 3, but they shall not prevent the publica- tion of other translations of the same work. Article 8 Newspaper articles may be reproduced, but the publica- Newspaper tion from which they are taken must be mentioned, and articles the name of the author given, if it should appear in the same. Article 9 Copyright shall be recognized in favor of the persons Works bear- whose names or acknowledged pseudonyms are stated in ing names of the respective literary or artistic work or in the petition to authors or which Article 4 of this Convention refers, excepting case of ^^®" onyms proof to the contrary. Article 10 Addresses delivered or read in deliberative assemblies, Addresses before the courts of justice, and in public meetings may be published in the newspaper press without any special au- thorization. Article ii The reproduction in publications devoted to public in- Fragments struction or chrestomathy of fragments of literary or artis- of literary tic works confers no right of property, and may therefore °'^ artistic be freely made in all the signatory countries. Article 12 All unauthorized indirect use of a literary or artistic work infringe- which does not present the character of an original work ment defined shall be considered as an unlawful reproduction. 640 COPYRIGHT Fraudulent copies to be seques- trated, etc. Each Gov- ernment to exercise supervision Convention to take efiect three months after ratifi- cation Adherence of nations not repre- sented at 2d Int. Am. Conference It shall be considered in the same manner unlawful to reproduce in any form an entire work, or the greater part of the same, accompanied by notes or commentaries, under the pretext of literary criticism or of enlargement or com- pletement of an original work. Article 13 All fraudulent works shall be liable to sequestration in the signatory countries in which the original work may have the right of legal protection, without prejudice to the indemnity or punishments to which the falsifiers may be liable according to the laws of the country in which the fraud has been committed. Article 14 Each one of the Governments of the signatory coun- tries shall remain at liberty to permit, exercise vigilance over, or prohibit the circulation, representation and exposi- tion of any work or production in respect to which the competent authorities shall have power to exercise such right. Article 15 The present Convention shall take effect between the signatory States that ratify it, three months from the day they communicate their ratification to the Mexican Gov- ernment, and shall remain in force among all of them until one year from the date it is denounced by any of said States. The notification of such denouncement shall be addressed to the Mexican Government and shall only have effect in so far as regards the country which has given it. Article 16 The Governments of the signatory states, when approv- ing the present Convention, shall declare whether they accept the adherence to the same by the nations which have had no representation in the Second International American Conference. In testimony whereof the Plenipotentiaries and Dele- PAN AMERICAN CONVENTIONS 641 gates sign the present Convention and set thereto the seal of the Second International American Conference. Made in the City of Mexico, on the twenty-seventh day Signed at of January, nineteen hundred and two, in three copies writ- City of ten in Spanish, English, and French, respectively, which 27*^002 * shall be deposited at the Department of Foreign Relations of the Government of the Mexican United States, so that certified copies thereof may be made, in order to send them through the diplomatic channel to the signatory States. 13- RIO DE JANEIRO CONVENTION, I906 Patents, trade- marks, copyrights Union; Bureaus at Havana and Rio de Janeiro Registration optional Bureau at Havana Convention, signed at Rio de Janeiro, August 23, 1906, TO protect Patents of Invention, Drawings and Industrial Models, Trade-Marks, and Liter- ary AND Artistic Property Article i The subscribing nations adopt in regard to patents of in- vention, drawings and industrial models, trade-marks, and literary and artistic property the treaties subscribed at the Second International Conference of American States, held in Mexico on the 27th of January, 1902, with such modifi- cations as are expressed in the present Convention. Article 2 A union is constituted of the nations of America, which will be rendered effective by means of two Bureaus, which will be maintained, one in the city of Havana and the other in that of Rio de Janeiro, each working closely with the other, to be styled Bureaus of the International American Union for the Protection of Intellectual and In- dustrial Property, and will have for their object the central- ization of the i'egistration of literary and artistic works, patents, trade-marks, drawings, models, etc., which will be registered, in each one of the signatory nations, according to the respective treaties and with a view to their validity and recognition by the others. This international registration is entirely optional with persons interested, since they are free to apply, personally or through an attorney-in-fact, for registration in each one of the States in which they seek protection. Article 3 The Bureau established in the city of Havana will have charge of the registrations from the United States of PAN AMERICAN CONVENTIONS 643 America, the United States of Mexico, Venezuela, Cuba, Haiti, San Domingo, San Salvador, Honduras, Nicaragua, Costa Rica, Guatemala, Panama, and Colombia. The Bureau established in the city of Rio de Janeiro will Bureau at attend to the registrations coming from the republics of Rio de the United States of Brazil, Uruguay, Argentine Republic, J^^*"* Paraguay, Bolivia, Chile, Peru, and Ecuador. Article 4 For the purpose of the legal unification of the registra- Bureaus to tion, the two International Bureaus, which are divided be consid- ■ merely with a view to greater facility of communication, are ®''®^ *^ °°* considered as one, and to this end it is established that (a) both shall have the same books and the same accounts kept under an identical system; (b) copies shall be trans- mitted monthly from one to the other, authenticated by the Governments in whose territories they have their seat, of all the registrations, communications, and other documents affecting the recognition of the rights of pro- prietors or authors. Article 5 Each one of the Governments adhering to the Union will Copies of send at the end of each month to the proper Bureau, accord- registrations ing to Art. 3, authenticated copies of all registrations of to be trans- trade-marks, patents, drawings, models, etc., and copies of the literary and artistic works registered in them, as well as of all lapses, renunciations, transfers, and other altera- tions occurring in proprietary rights, according to the re- spective treaties and laws, in order that they may be sent out or distributed and notice given of them as the case may be by the International Bureau to those nations in direct correspondence therewith. Article 6 The registration or deposit of drawings, models, etc., Bureaus to made in the country of origin according to the national law transmit of the same and transmitted by the respective administra- certificates tion to the International Bureau, shall be by such Bureau tection is not allowed 644 COPYRIGHT laid before the other countries of the Union, by which it shall be given full faith and credit, except in the case pro- vided for in Art. 9 of the Treaty on Patents, Trade-Marks, etc., of Mexico, and in case the requirements essential to the recognition of international property are lacking where literary or artistic works are involved according to the treaty thereon subscribed in Mexico. Protection to In order that the States forming the Union may accept be allowed qj. refuse the recognition of the rights granted in the coun- °^M "^^ ^'^y °^ origin, and for the further legal purposes of such year recognition, such States shall be allowed a term of one year from the date of notification by the proper office for the purpose of so doing. Notification In case patents, trade-marks, drawings, models, etc., or in case pro- the right to literary or artistic works shall fail to obtain re- cognition on the part of any one of the offices of the States forming the Union, the International Bureau shall be made acquainted with the facts and reasons of the case in order that in its turn these facts maybe transmitted by it to the office of origin and to the interested party, for proper action according to local law. Article 7 Registration Every registration or recognition of intellectual and in- in country of dustrial rights made in one of the countries of the Union ongin tohave ^j^j communicated to the others according to the form pre- reeistration scribed in the preceding articles shall have the same effect in each that would be produced if said registration or recognition country had taken place in all of them, and every nullification or Term of pro- lapse of rights occurring in the country of origin and com- tection, aat municated in the same form to the others shall produce in orig^° ° them the same effect that it would produce in the former. K no term '^^^ period of international protection derived from the by law, then registration shall be that recognized by the laws of the as specified country where the rights originated or have been recog- nized ; and if said laws do not provide for such matters or do not specify a fixed period, the respective periods shall be: for patents, 15 years; for trade-marks or commercial designs, models, euid industrial drawings, 10 years ; for liter- PAN AMERICAN CONVENTIONS 645 ary and artistic works, 25 years, counting from the death Copyright, of the author thereof. The first two periods may be re- 25 years after newed at will by giving the same form as in the case of the ^^^ °* first registration. Article 8 The International Bureaus for the protection of intel- Regulations lectual and industrial property shall be governed by iden- to govern tical regulations, formed with the concurrence of the Gov- Bureaus ernments of the Republics of Cuba and Brazil and approved by all the others belonging to the Union. Their budgets, after being sanctioned by the said Governments, shall be Expenses of defrayed by all of the subscribing Governments in the same Bureaus proportion established for the International Bureau of American Republics at Washington, and in this particular they shall be placed under the control of those Govern- ments within whose territories they are established. To the tax on rights which the country of their origin col- Registration lects for registration or deposit and other acts resulting fee, $s from the recognition or guaranty of intellectual and Indus- Amencan trial property, shall be added a fee of five dollars, Ameri- can gold, which fee or the equivalent thereof in the cur- rency of the country in which the payment is made shall be distributed in equal parts among the Governments in whose territory the International Bureaus shall be estab- lished, the sole object of this being to contribute to the maintenance of the said Bureaus. Article 9 In addition to the functions prescribed in the preceding Functions of articles, the International Bureaus shall have the follow- Bureaus: ing: 1st. To collect information of all kinds regarding the i. To coUect protection of intellectual and industrial property and to f^ publish publish and circulate the same among the countries of ""^at""* America at proper intervals; U and. To encourage the study of questions regarding the 2. May pub- said subjects, to which end they may publish one or more Msh official official reviews containing all documents forwarded to 'e^e^s them by the offices of the subscribing countries; 646 COPYRIGHT 3. To give notice of difficulties 4. To origi- nate and prepare for international conferences 5. To make yearly report 6. To arrange for the exchange of publications, etc. 7. To act as agent for each of the Govern- ments concerned Registration required to replace provisions of treaties of igoa 3rd. To lay before the Governments of the Union any difficulties or obstacles that may arise in the efficacious application of the present Convention, and indicate means to correct or remove such difficulties or obstacles; 4th. To help the Governments of the Union in the pre- paration of international conferences for the study and pro- gress of legislation and intellectual and industrial proper- ties, for alterations which it may be proper to introduce in the regulations of the Union or in the treaties in force on the said subject, and in case such conferences take place the directors of ] the Bureaus,~not appointed to represent any countries, shall have a right to attend the meetings and express their opinions at them, but not to vote; 5th. To present to the Governments of the countries where they shall have their seats a yearly report of their labors, which shall be communicated to all of the States of the Union; 6th. To establish relations for the exchange of publica- tions, informations and data conducive to the progress of the institution with similar bureaus, and institutions, and with scientific, literary, artistic, and industrial corpora- tions of Europe and America; 7th. To cooperate as agent for each one of the Govern- ments of the Union for the transaction of any business, the taking of any initiative, or the execution of any act condu- cive to further the ends of the present Convention with the offices of the other Governments. Article 10 The provisions contained in the Treaties of Mexico of January 27th, 1902, on patents of invention, drawings and industrial models, and commercial trade-marks, and on literary and artistic property, so far as regards the formal- ities of the registration or recognition of said rights in other countries than that of origin, shall be considered as replaced by the provisions of the present Convention as soon as one of the International Bureaus shall have been established, and only with regard to those States which have concurred in its constitution ; in all other cases the said treaties shall PAN AMERICAN CONVENTIONS 647 remain in force and the present Convention shall be con- sidered additional thereto. Article ii The Governments of the Republics of Cuba and the Cuba and United States of Brazil shall proceed with the organiza- Brazil to tion of the International Bureaus upon the ratification of organize this Convention by at least two-thirds of the nations be- g^^yg * longing to each group mentioned in Article 3. The simul- taneous establishment of both Bureaus shall not be neces- sary ; one only may be established if there be the number of adherent Governments provided above, the Govern- ment in which the Bureau has its seat being charged with taking the proper steps to secure this result, availing itself of the powers contained in the eighth article. In the event that one of the two offices referred to in this Bureau first Convention shall have been established, the countries be- established longing to a group other than that to which the Bureau ^beused corresponds shall have the right to join it until the second jg organized Bureau shall be established. Upon the establishment of the second Bureau the first Bureau shall transmit to the same all the data referred to in Article 12. Article 12 As regards the adhesion of the American nations to the Adhesions to present Convention, it will be communicated to the Gov- treaty to be ernment of the United States of Brazil, which will lay it be- con™uni- fore the others, these communications taking the place of Bjaj.il an exchange of notes. The Government of Brazil will also notify the Interna- Brazil to tional Bureau of this adhesion, and this Bureau will for- notify Bu- ward to the newly adhering State a complete statement of '^" . ® all the marks, patents, models, drawings, and literary and artistic works registered which at the time shall be under international protection. In testimony whereof the Plenipotentiaries and Dele- gates have signed the present Convention and affixed the seal of the Third International American Conference. Made in the City of Rio de Janeiro the twenty-third day 648 COPYRIGHT Signed at of August, nineteen hundred and six, in English, Portu- Rio de guese, and Spanish, and deposited with the Secretary of Janeiro, Foreign Affairs of the United States of Brazil, in order that ug.33i 9 certified copies thereof be made and sent through diplo- matic channels to the signatory States. 14- BUENOS AIRES CONVENTION, I9IO Convention on Literary and Artistic Copyright Signed at Buenos Aires, August ii, 1910 Article i The signatory States acknowledge and protect the Union to pro- rights of literary and artistic property in conformity with tect literary the stipulations of the present convention. ^'^^ artistic property Article a In the expression "Literary and artistic works" are in- Definition of eluded books, writings, pamphlets of all kinds, whatever " literary may be the subject of which they treat and whatever the and artistic number of their pages; dramatic or dramatico-musical works; choreographic and musical compositions, with or without words; drawings, paintings, sculpture, engravings; photographic works; astronomical or geographical globes; plans, sketches or plastic works relating to geography, geology or topography, architecture or any other science; and, finally, all productions that can be published by any means of impression or reproduction. Article 3 The acknowledgment of a copyright obtained in one Formalities State, in conformity with its laws, shall produce its effects of full right in all the other States without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right. Article 4 The copyright of a literary or artistic work includes for Definition of its author or assigns the exclusive power of disposing of the copyright same, of publishing, assigning, translating, or authorizing 650 COPYRIGHT Authorship recognized Authors to enjoy rights secured in country of origin for like term Works in parts or in several volumes Coxmtry of first publi- cation coun- try of origin Subsequent editions non- copyright Translation protected its translation and reproducing it in any form whether wholly or in part. Article 5 The author of a protected work, except in case of proof to the contrary, shall be considered the person whose name or well-known nom de plume is indicated therein; conse- quently suit brought by such author or his representative against counterfeiters or violators shall be admitted by the courts of the signatory States. Article 6 The authors or their assigns, citizens or domiciled for- eigners, shall enjoy in the signatory countries the rights that the respective laws accord, without those rights being allowed to exceed the term of protection granted in the country of origin. For works comprising several volumes that are not pub- lished simultaneously, as well as for bulletins, or parts, or periodical publications, the term of the copyright will commence to run, with respect to each volume, bulletin, part, or periodical publication, from the respective date of its publication. Article 7 The country of origin of a work will be deemed that of its first publication in America, and if it shall have appeared simultaneously in several of the signatory countries, that which fixes the shortest period of protection. Article 8 A work which was not originally copyrighted shall not be entitled to copyright in subsequent editions. Article 9 Authorized translations shall be protected in the same manner as original works. Translators of works concerning which no right of guaranteed property exists, or the guaranteed copyright of which may have been extinguished, may obtain for their PAN AMERICAN CONVENTIONS 651 translations the rights of property set forth in Article 3d but they shall not prevent the publication of other transla- tions of the same work. Article 10 Addresses or discourses delivered or read before delibera- Addresses tive assemblies, courts of justice, or at public meetings may be printed in the daily press without the necessity of any authorization, with due regard, however, to the provisions of the domestic legislation of each nation. Article ii Literary, scientific, or artistic writings, whatever may be Newspaper their subjects, published in newspapers or magazines in any articles one of the countries of the Union, shall not be reproduced in the other countries without the consent of the authors. With the exception of the works mentioned, any article in a newspaper may be reprinted by others if it has not been expressly prohibited, but in every case the source from which it is taken must be cited. News and miscellaneous items published merely for Newspaper general information do not enjoy protection under this lews convention. Article 12 The reproduction of extracts from literary or artistic Fragments publications for the purpose of instruction or chresto- o* literary mathy does not confer any right of property, and may, ^q^^**' therefore, be freely made in all the signatory countries. Article 13 The indirect appropriation of unauthorized parts of a infrfnge- literary or artistic work having no original character shall meats be deemed an illicit reproduction, in so far as affects civil defined liability. The reproduction in any form of an entire work, or of the greater part thereof, accompanied by notes or com- mentaries under the pretext of literary criticism or am- plification, or supplement to the original work, shall also be considered illicit. 652 COPYRIGHT Fraudulent copies to be seques- trated, etc. Each gov- ernment to exercise supervision Convention to take effect three months after ratification Signed at Buenos Aires Aug. 11,1910 Article 14 Every publication infringing a copyright may be con- fiscated in the signatory countries in which the original work had the right to be legally protected, without preju- dice to the indemnities or penalties which the counter- feiters may have incurred according to the laws of the country in which the fraud may have been committed. Article 15 Each of the Governments of the signatory countries shall retain the right to permit, inspect, or prohibit the cir- culation, representation, or exhibition of works or produc- tions, concerning which the proper authority may have to exercise that right. Article 16 The present convention shall become operative between the signatory States which ratify it three months after they shall have communicated their ratification to the Argentine Government, and it shall remain in force among them until a year after the date, when it maybe denounced. This denunciation shall be addressed to the Argentine Government and shall be without force except with respect to the country making it. Made and signed in the city of Buenos Aires on the eleventh day of August in the year one thousand nine hundred and ten, in Spanish, English, Portuguese, and French, and deposited in the ministry of foreign affairs of the Argentine Republic, in order that certified copies be made for transmission to each one of the signatory nations through the appropriate diplomatic channels. The convention was thus signed by representatives of twenty powers: the United States of America, Argentine Republic, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Hon- duras, Mexico, Nicaragua, Panama, Paraguay, Peru, Salvador, Uruguay and Venezuela. CHRONOLOGICAL TABLE OF LAWS AND CASES, ENGLISH AND AMERICAN This table gives in chronological order the statutes, with reference to their place in the statute books, and historical, leading and recent cases with the name of the coiut, of the judge presiding or giving the opinion, and the reference to the law reports, also an epitome of the point cited in the text, with page reference. It is not intended to cover minor cases, not settling any principle, and where a decision has been reversed on appeal, the case in the lower court may not be given unless some definite point was there settled. The usual law report abbreviations are employed; outside of these, Copinger refers to Copinger's " Law of Copyright," Copr. Cas. to the annual summary of copyright cases edited by McGillivray and published by the English Publishers Association, Hamlin Copr. C. & D. to Hamlin's "Copy- right Cases and Decisions, 1891-1903," published for the American Publishers' Copyright League, Times to the London Times legal column, and Pub. Week, to the Publishers' Weekly, of New York. English and American cases can be distinguished by the name of the court, judge or report. Cases are entered alphabetically in the general index with references to the year and to the page of text. 1710 Act for the encouragement of learning 8 Anne, c. 19 173s Engraving copjnright act 8 Geo. II, c. 13 I73S Eyre v. Walker Chancery Jekyll, M. R., 4jBur, 2323 "The whole duty of man" protected at common law after statii^^ ~ — tory term, 24 1739 Prohibition of foreign reprints act 12 Geo. II, c. 36 1740 Gyles V. Wilcox Chancery L. Hardwicke, 2 Atk. 141 Condemning reprint "colorably shortened only," but not "a real and fair abridgment," 80 1741 Pope V. Curl Chancery L. C. Hardwicke, 2 Atk. 342 Republication of letters enjoined, 92 1766 Engraving copyright act 7 Geo. Ill, c. 38 1769 Millar v. Taylor King's Bench L. Mansfieldj^ 4 Bur. 2303 Thomson's "Seasons" protected at common law in perpetmty, 25 1774 "Newbery's case" King's Bench L. C. Apsley, Lofft, 77s Abridgment involving understanding and skill "an allowable and meritorious work," 80 1774 Donaldson v. House of Lords 2 Bro. P. C. 129 Becket Thomson's "Seasons" — common law rights abrogated by Statute of Anne, 7, 25, 26, 41 1774 Thompson v. Stanhope Chancery Ld. Apsley, Amb. 737 Publication prevented of letters, though a gift from author, 92 177s [University] copyright act iS Geo. HI, c. 53 1777 Prints copyright act I7 Geo. HI, c. 57 654 COPYRIGHT 1783 U. S. Constitution Art. I, § 8 1783-90 State copyright laws 1787 Copyright in designs act 27 Geo. m, c. 38 1789 Copyright in designs act 29 Geo. Ill, c. 19 1790 U. S. general copyright act 1794 Cop3fright in designs act 34 Geo. in, c. 23 1798 Sculpture copyright act 38 Geo. in, c. 71 1798 Beckford v. Hood King's Bench L. Kenyon, 7 T. R. 620 Common law remedies also applied in statutory period, 27 1801 Act for the further encouragement of learning 41 Geo. Ill, c. 107 1801 Cary v. Longman King's Bench L. Kenyon, i East, 358 New added material to non-copyright book, protectable as such, 76 1802 U. S. Supplementary act (engravings, etc.) 1812 Morris V. Colman Chancery L. C. Eldon, 18 Vesey, 437 Author under exclusive contract enjoined from furnishing plays elsewhere, 441 1814 Sculpture copyright act 54 Geo. m, c. 56 1814 Amendatory copyright act, for printed books 54 Geo. Ill, c. 156 1817 Gale V. Leckie King's Bench L. Ellenborough, 2 Starkie, 107 Author liable for failure to complete work, 441 1817 Southey ». Sher- Chancery L. Eldon, 2Meriv. 435 wood No copyright in immoral book. No right to hold what there was no right to sell, 86 1819 U. S. act extending jurisdiction of Circuit Courts 1819 Clarke v. Price Chancery L. C. Eldon, 2 Wils. C. R. 157 Author cannot be compelled to write, 441 1824 Barfield v. Chancery V. C. Leach, 2 L. J. Ch. 90 Nicholson Author may not prejudice sale through 'another book of like subject, 441 1825 Abernethy v. Chancery L. C. Eldon, 3 L. J. (0. S.) Hutchinson Ch. 209 Unwritten lecture — oral delivery not publication, 90 1826 Mawman v. Tegg Chancery L. C. Eldon, 2 Russ. 383 "Fair use" defined. Inseparable use of copyright material ren- ders whole work an infringement, 256 1828 Clayton v. Stone U. S. C. C. J. Thompson, 2 P^e, 382 Copjrightable property not determined by size, form or shape, but by subject-matter, 69 1831 U. S. general copyright act 1831 Brooke v. Chitty Chancery L. Brougham, 2 Cooper (Cot- tenham), 216 Court cannot restrain book until there is actual printing and pub- lication, 442 TABLE OF LAWS AND CASES 655 1832 Archbold v. Sweet King's Bench C. J. Tenterden, s Carr. & P. 2ig Alterations by publistier not permitted to author's injuiy, 443 1833 Dramatic copyright act 3 & 4 Will. IV, c. 15 1834 U. S. supplementary act (assignment) 1834 Wheaton v. Peters U. S. Sup. Ct. J. McLean, 8 Pet. 591 XJ. S. Act of 1790 abrogates common law rights after publication, 40, 41 ; "There is no common law of the U. S.," 44; exact con- formity with statute requisite, 149 183s Lectures copyright act 5 & 6 Will. IV, c. 65 1836 Prints and engravings copsright act (Ireland) 6 & 7 Will. IV, c. $9 1836 Copyright act, library deposit copies 6 & 7 Will. IV, c. no 1838 International copyright act i & 2 Vict. c. 59 1839 Copyright in designs (fabrics) act 2 Vict. c. 13 1839 Amendatory copyright act, for designs 2 Vict. c. 17 1840 Bell V. Locke [N. Y.] Chan- Chan. Walworth, 8 Paige, 74 eery Deceiving public by use of like title is an infringement, 83 1840 Dwight V. Appleton U. S. C. C. J. Thompson, i N. Y. Leg. Obs. 19s Copyright notice in succeeding volumes held unnecessary, 133 1841 Folsom V. Marsh U. S. Sup. Ct. J. Story, 2 Story, 100 Author of letters has sole right to copyright, 92 ; piracy if an- other's labor is substantially appropriated to injurious extent, 252 1841 Gibson v. Carruthers Exchequer 8 M. & W. 321 Author cannot on bankruptcy of publisher be required to com- plete work, 4S2 1841 Sweet V. Cater Chancery V. C. Shadwell, s Jur. 68 Publisher may prevent author from issuing competing edition, 444 1842 Cop3Tight act S & 6 Vict. c. 45 1842 Customs act S & 6 Vict. c. 47 1842 Designs cops^ight act S & 6 Vict. c. 100 1843 Amendatory copyright act, for designs 6 & 7 Vict. c. 65 1843 Lennie v. Pillans Scotch Ct. Sess. L. P. Boyle, iii Sc. Rev. R. 2, s. 171 Compilations of non-copyright material showing originality and labor, protected, 81 1844 International copyright act 7 & 8 Vict. c. 12 1844 Act to reduce duties on books and prints 7 & 8 Vict. c. 73 1846 Amendatory act for duties on books 9 & 10 Vict. c. 58 1846 U. S. act. Deposit of copies 1847 Colonial copyright act 10 & 11 Vict. c. 95 1847 Story's Executors U. S. C. C. J. McLean, 4 McLean, 306 V. Holcombe Fair abridgment, by ruling precedents, not an invasion of liter- ary property, 81 656 COPYRIGHT 1848 Baker v. Taylor U. S. C. C. J. Betts, a Blatch. 82 Error of 1847 for 1846 in copyright notice invalidates copyright, i2g 1848 Russell V. Smith Queen's Bench L. Denman, 12 Q. B. 217 Dramatic rendition of song vrithout costume or scenery adjudged "dramatic piece," 176, 191; registration of dramatic piece optional in England, 189 1849 Albert, Prince, v. Ct. App. V._C. Bruce, 2 De G. & Sm. Strange 652 Common law protects until publication, 187; descriptive cata- logue and exhibition of copies of unpublished art work in- fringements, 238 1850 Copyright in designs act 13 & 14 Vict. c. 104 1851 Protection of works. London international exhibition 14 Vict. c. 8 1852 International copyright act 15 & 16 Vict. c. 12 1852 Bogue V. Houlston Chancery V. C. Parker, 5 De G. & Sm. 267 Cop3night extends to every part of a book, 76 1852 Little s. Gould U.S. C.C. App. J. Nelson, 2 Blatch. 362 State copyright owner in work of salaried law reporter, 98 1852 Pulte V. Derby U. S. C. C. J. McLean, s McLean, 328 Publishing contract for "edition," does not prohibit successive printings, 446 1853 Customs consolidation act 16 & 17 Vict. c. 107 1853 Cox V. Cox Chancery V. C. Wood, 11 Hare, 118 Writer may not prevent alterations made by employer, 443 1853 Stowe V. Thomas U. S. C. C. J. Grier, 2 Wall Jr. S47 No exclusive right of translation under early law, 77 1854 Jefferys v. Boosey House of Lords 4 H. L. C. 815 Definition of the two senses of copyright, i, 2, 4; non-resident foreigner could not acquire copyright under act of 1710 by first publication in England, 108, 373 1854 Stevens u. Benning Chancery V. C. Wood, i Kay & J. 168 Contract for publication a personal contract not assignable without consent, 444 1855 Customs consolidation act. 18 & 19 Vict. c. 96 1855 U. S. Act. Deposits through mails free 1855 Stevens v. Benning Ct. App. Lds. J. Bruce & 6 De G. M. Turner, & G. 223 Affirming Stevens v. Benning, 1856 U. S. supplementary act (dramatic) 1858 Amendatory copjright act, for designs 21 & 22 Vict. c. 70 1858 Reade v. Bentley Chancery V. C. Wood, 4 K. & J. 656 Contract for publication a personal contract of "joint adven- ture" terminable by author if not to publisher's loss, 434, 444 i8s9 U. S. act. Place of deposit i860 Blackwood v. Scotch Ct. Sess. 23 Sc. Sess. c. 2, s. 142 Brewster Reprints to replace destroyed copies do not constitute anew edition, 445 TABLE OF LAWS AND CASES 657 i860 Crookes v. Fetter Rolls Ct. Romilly, M. R., 6 Jur. 1131 Editor's name not requisite part of title, 44s i860 Turner J). Robinson Irish CtChanc. Smith, M. R., 10 Ir. Ch. R.iai Exhibition, with restriction as to copying, not publication, 232 i860 Turners. Robinson Ct. App. L. C. Brady, 10 Ir. Ch. R. 510 Liability under breach of contract, 232; Academy exhibition considered publication, 232 1861 Amendatory copyright act, for designs 24 & 25 Vict. c. 73 1861 Statute law revision act 24 & 25 Vict. c. loi 1861 U. S. act. Appeal for copsoight cases to Supreme Court 1862 Fine arts copyright act 25 & 26 Vict. c. 68 1862 Boucicault v. Fox U. S. C. C. J. Shipman, s Blatch. 87 A man's intellectual productions his own, except under valid agreement with employer, 97 1862 Drury v. Ewing U. S. C. C. J. Leavitt, i Bond, S40 Diagram with directions for dress cutting adjudged "book," 69 1862 Howitt II. HaU Chancery V. C. Wood, 6 L. T. (n. s.) 348 Copies printed within term of contract may be sold after expira- tion, 445 1862 Reade v. Conquest Common Pleas C. J. Erie, 11 C. B. (n. s.) 478 Dramatization based on novelization, infringement of original play, 172 1863 Boucicault v. Chancery V. C. Wood, i H. & M. S97 Delafield First publication outside British Dominions under int. copr. act, forfeits playright, 184 1863 Hotten ». Aythur Chancery V. C. Wood, i H. & M. 603 Catalogue of old books copyrightable, 73 1863 Tinsley v. Lacy Chancery V. C. Wood, i H. & M. 747 Printed dramatization enjoined as using substantial parts of novel, 173 1864 Low V. Routledge Chancery V. C. Kindersley, 33 L. J. (n. s.) Ch. 717 Inaccuracy in name of proprietor invalidates copyright entry, 128 i86s U. S. supplementary act (photographs) 1867 Statute law revision act 30 & 31 Vict. c. S9 1867 U. S. act. Penalty for failure to deposit 1867 Maxwell v. Hogg Chancery L. Caims, 2 Ch. D. 307 Belgravia — Title not protectable until associated with a pub- lished work, 7S, 84, 85 1868 Daly V. Pabner U. S. C. C. J. Blatchford, 6 Blatch. 256 Test of piracy defined, 17s 1868 Routledge 11. Low House of Lords L. R., 3 H. L. 100 Foreigner temporarily resident at first publication may acquire British copyright under act of 1842, 109; first publication probably single requisite for copyright, 109, 374 658 COPYRIGHT 1869 Lawrence v. Dana U. S. C. C. J. Clifford, 4 Cliff, i An abridgment permitted as established by precedent, Si ; new notice on new edition protects matter copyright in old edition, 134; " copying is not confined to literal repetition," 254 1869 Taylor v. Pillow Chancery V. C. James, L. R. 7 Eq. 418 Proprietor, after assigning copyright, may dispose of unsold copies, 446 1870 U. S. consolidation act 1870 Black ». Murray Scotch Ct. Sess. L. Inglis, ixSc.Rev.R.3, s. 443 New editions "enlarged and improved" copyrightable, 7s 1871 Stannard v. Chancery V. C. Bacon, 24 L. T. (n. Harrison S.) 570 4 Bight in map drawn to order vests in employer, 239 1872 Clark V. Bishop Exchequer C. B. Kelly, 25 L. T. (n. s.) 908 Song dramatically rendered protected as dramatic piece, 176 1872 Cobbett V. Chancery L. Romilly, L. R. 14 Eq. Woodward 407 No copyright in an advertisement, 73 1872 Osgood II. Allen U. S. C. C. J. Shepley, i Holmes, 185 "Our Young Folks" — a title not copyrightable as such, 8a, 85 1872 Palmer v. DeWitt N. Y. Ct. App. J. Allen, 47 N. Y. S32 Performance of play not publication, 180 1873 U. S. act. Inclusion in Revised Statutes 1874 U. S. act. Notice, fees, etc. 1874 Isaacs V. Daly N. Y. Sup. Ct. J. Curtis, 7 Jones & Sp. S" Title "Charity" cannot be monopolized, 82, 84 1874 Toole V. Young Queen's Bench C. J. Cockbum, 9 Q. B. 523 Right of dramatization not included under book copyright in England, 172 1874 Ward V. Beeton Chancery V. C. Malins, L. R. 19 Eq. 207 Proprietary name may not be used on competing publication, 445 1874 Wameji.Routledge Chancery Jessel, M. R., L. R. i8Eq. 497 Right of publishing exclusive fortune of contract only, 445 187s International copjrright act 38 Vict. c. 12 187s Canada copjright act 38 & 39 Vict. c. 53 187s Amendatory copyright act for designs 38 & 39 Vict. c. 93 187s Banks v. McDivitt U. S. C. C. J. Shipman, 13 Blatchf. 163 Test of piracy defined, 251 187s Boudcault V. Hart U. S. C. C. J. Hunt, 13 Blatch. 37 Kxact conformity with statute requisite, 149 187s Parkinson v. Laselle U. S. C. C. J. Sawyer, 3 Sawyer, 330 Exact conformity with statute requi^te, 149 1876 Customs law consolidation act 39 & 40 Vict. c. 36 TABLE OF LAWS AND CASES 659 1876 Boucicault v. Chancery J. James, s Ch. D. 267 Chatterton Previous performance of "Shaughraun" in N. Y. forfeited play- right, 184 1876 Chatterton v. Cave Ct. App. C. J. Cockbum, 46 L. J. (n. s.) C. L. 97 Rival dramatization, utilizing not substantial added scenes, per- mitted, 174 1878 Chatterton v. Cave House of Lords 3 A. C. 483 Following decision of lower court. 1878 Weldon ». Dicks Chancery V. C. Malins, 10 Ch. D. 247 Title " Trial and Triumph " protected as virtually trade-mark, 83 1879 U. S. act. Transmission through mails 1879 Hole V. Bradbury Chancery J. Fry, 12 Ch. D. 886 Authors entitled to resume rights succeeding publishers, 44s 1879 Kelly II. Byles Chancery V. C. Bacon, 13 Ch. D. 68a Title " Post Office directory ' ' not copyrightable. No resemblance of publications, 83 1880 Putnam v. PoUard N. Y. Sup. Ct. J. Beach, N. Y. Daily Reg. 0. 13 '80 State common law superseded by V. S. statute, 40 1881 Dicks V. Yates Chancery V. C. Bacon, 18 Ch. D. 76 "Splendid misery" — title thrice used, common property, not protectable, 83 1882 Cop3fright (musical compositions) act 45 & 46 Vict. c. 40 1882 U. S. act. Position of notice 1882 Cable B. Marks Chancery V.C.Bacon, 47 L.T. (n. s.) 432 Shadow-trick perforated card, not copyrightable, 242 1882 Chappell V. Boosey Chancery J. North, 21 Ch. D. 232 Publication as book before performance does not preclude per- forming rights, 183, 184 1882 Maples. Junior Ar- Ct. App. J. Jessel, 21 Ch. D. 369 my & Navy Stores Illustrated advertising catalogue protected, 73 1883 Patents, designs, and trade marks act 46 & 47 Vict. c. S7 1883 Clemens v. Belford U. S. C. C. J. Blodgett, 14 F. R. 728 Right to publish involves right to state authorship, 98 1883 Thomas v. Lennon U. S. C. C. J. Lowell, 14 F. R. 849 Unpublished oratorio infringed by orchestral score from non- copyright piano arrangement, 187 1884 Burrow-Giles Lith. U. S. Sup. Ct. J. Miller, in U. S. 53 Co. V. Sarony "Writings" construed to cover photographs, 67, 240; N. Sa- rony (for Napoleon Sarony) sufficing as name, 129 1884 Estes I). Williams U. S. C. C. J. Wheeler, 21 F. R. 189 "Chatterbox" — title restrained from use on juveniles of like general character, 83 660 COPYRIGHT 1884 Duck V. Bates Ct. App. Brett, M. R., 13 Q. B. 843 Amateur performance not for profit not a public representation, 186 1884 Nicols V. Pitman Chancery J. Kay, 26 Ch. D. 374 Indirect copying by short-hand characters an infringement, 254 1886 International copyright act 49 & 50 Vict. c. 33 1886 Aronson v. Fleck- U. S. C. C. J. Blodgett, 28 F. R. 75 enstein Title of drama protected under conunon law, 192 1886 Harper v. Shoppell U. S. C. C. J. Wallace, 23 Blatch. 431 Unprinted electrotype did not infringe copyright, 23s 1886 Holloway ». Bradley U. S. C. C. J. Butler, Pub. Week. 30 : 223 Publisher may affix material to copyright book, loo 1886 Monaghan v. Taylor Queen's Bench L. C. J. Coleridge, 2 T. L. R. 685 Proprietor of music hall liable for infringement by singer, 193 1887 Estes V. Worthing- U. S. C. C. J. Shipman, 31 F. R. 154 ton Title "Chatterbox" protected as trade-mark against simulating publication of differing contents, 84, 261 1887 Harper v. Frank- U. S. C. C. J. Waite, Pub. Week. 31: 372 lin Sq. Lib. Co. Trade-mark rights in name "Franklin Square library" pro- tected, 262 1888 Copyright (musical compositions) act 51 & 52 Vict. c. 17 1888 Patents, designs and trade marks act 51 & S^ Vict. c. 50 1888 Callaghan v. Myers U. S. Sup. Ct. J. Blatchford, 128 U. S. 617 1866 for 1867 does not invalidate copyright notice, 130 1888 Gottsbergers. Estes U. S. C. C J. Colt, 33 F. R. 381 Publication before deposit voided copyright (under old law), 136 1888 Mitchell & Miller v. N. Y. Sup. Ct. Pub. Week. 34 : 586 White & Allen "Life"' — misleading use of title enjoined, 84 1888 Munro v. Beadle N. Y. Sup. Ct. J. Ingraham, 18 St. R. 278 "Sleuth" as a dictionary word not protectable, 262 1888 Munro v. Smith N. Y. Sup. Ct. J. O'Brien, 18 St. R. 279 Use of name " Sleuth " when misleading the public actionable, 262 1888 Schumacher v. U. S. C. C. J. Wallace, 35 F. R. 210 Wogram Copyright probably voided by too early date in notice, 130; pic- ture intended for cigar lahel not copyrightable, but trade- mark, 237 1888 Warne v. Seebohm Chancery J. Stirling, 39 Ch. D. 73 Dramatization quoting beyond fair use infringement of novel, 173 1889 Revenue act 52 & 53 Vict. c. 42 TABLE OF LAWS AND CASES 66i 1889 Beere v. Ellis Queen's Bench B. Pollock, 5 T. L. R. 330 Rival dramatization enjoined, because added features were in- fringed, 173 1889 Gate V. Devon Chancery J. North, 40 Ch. D. 500 , Indirect copying from newspaper reprint held infringement, 254 1889 Everson v. Young D. C. Sup. Ct. J. Cole, 26 W. L. R. 346 Blank book not copyrightable, 72 ; librarian of Congress not discretionary officer, 72, 96 1889 Gihnore v. Ander- U. S. C. C. J. Wheeler, 38 F. R. 846 son Common use of non-copyright material or work on same subject not infringement, 255 1890 Munro v. Beadle N.Y. App.Div. J. Macomber, 55 Hun 312 "Sleuth" properly subject of trade-mark, 262 i8go Munro v. Smith U. S. C. C. J. Shipman, 42 F. R. 266 Illustration picturing "Old Sleuth" not infringement, 262 1890 Schlesinger v. Bed- Chancery J. Kekewich, 63 L. T. (n. s.) ford 762 Independent and "essentially different" dramatization permitted despite author's own dramatization, 173 1890 Schlesinger v. Chancery J. Kekewich, 63 L. T. (n. s.) Turner 764 Plays substantially similar an infringement, 173 1891 U. S. amendatory (inter, copr.) act 1891 Munro s.Tousey N.Y.Ct.App. J.Gray, 129 N. Y. 38 Name "Sleuth" not protectable, 262 1891 Black V. Ehrich U. S. C. C. J. Wallace, 44 F. R. 793 Title "Encylcopaedia Britannica" not protected when public is not misled, 261 1891 Dodd V. Smith Penn. Sup. Ct. Per curiam, 144 Pa. St. 340 Underselling by rebinds of paper-covered edition not enjoinable, 263 1891 Falk V. Brett Lith. U. S. C. C. J. Wheeler, 48 F. R. 678 Co. Posing for photograph justifies copyright by photographer. — Reversed lithograph infringement, 241 1891 Falk V. Cast U. S. C. C. J. Coxe, 48 F. R. 262 Copyright not forfeited by omission of notice on remounting of photographs by another than proprietor, 236; posing for pho- tograph justifies copyright by photographer, 241 1891 Fishbum v. Hoi- Chancery J. Stirling, [1891] 2 Ch. 371 lingshead Registration and deposit requisite except under international copsnight act, 313 1892 Duck s. Mayan Queen's Bench J. Day, 8 T. L. R. 339 Limitation of specific license for drama enforced, 190 662 COPYRIGHT 1892 Fishel V. Lueckel U. S. C. C. J. Townsend, S3 F- R- 499 Appropriation of part of a work an infringement, 244 1892 Fuller II. Bemis U. S. C. C. J. Lacombe, s° F- R- 926 Skirt dance not a dramatic composition, 177 1892 Lamb v. Evans Ct. App. L. J. Lindley, [1893], i Ch. 21S Copyright in sheet of advertisements upheld, 74 1892 Lee V. Gibbings Chancery J. Kekewich, 8 T. L. R. 773 Injury to author's repute question of libel not of copyright, 274 1892 Lucas 11. Williams Ct. App. L. Esher, L. R. [1892] 2 Q. B. "3 Photograph of engraving infringes original painting, 243, 274 1892 Walter v. Stein- Chancery J. North, [1892] 3 Ch. 489 kopfE Copyright in form of news protectable, 89, 259. Copying two- fiftlis of newspaper article, "unfair use," 259 1892 Daly V. Webster U. S. C. C. App. J. Lacombe, s6 F. R. 483 Infringement by single situation from dramatic work, 191; change of sub-title after copyrighting immaterial, 192 1893 U. S. enabling act (deposit) 1893 Black V. Allen U. S. C. C. J. Townsend, 56 F. R. 764 Inclusion of copyright material in non-copyright work does not vitiate copyright, 261 ; copyright may be transferred to foreign owner, 261; variation from registered title on use in cyclo- paedia immaterial, 261 1893 Falk V. Donaldson U. S. C. C. J. Townsend, 57 F. R. 3a Differences in lithographic reproduction of photograph not a de- fense, 244 1893 Falk V. Cast U.S. C.C. App. J. Shipman, S4 F. R. 890 Miniature samples not a publication of picture. Affirming Falk V. Cast, 23s 1893 Falk V. Heffron U. S. C. C. J. Wheeler, 56 F. R. 299 "Sheets" defined — copyright law must be strictly construed as to forfeiture and penalties, 271 1893 French D. Day et al. Queen's Bench J. Kennedy, 9 T. L. R. 54S Proprietor, not manager, of theatre responsible defendant, 193 1893 Hanfstaengl v. Queen's Bench J. Charles, [1893] 2 Q. B. i Ilolloway Registration and deposit not requisite, 313 1893 Macdonald 11. West. Co. Ct. Copinger 782 National Review Printers' proof sent by publisher to author implies acceptance of ms., 442 1893 Reichardt v. Sapte Queen's Bench J. Hawkins, [1893] 2 Q. B. 308 Similar play previously written but later performed cannot be enjoined, 187 TABLE OF LAWS AND CASES 663 1894 Drummond v. Al- U. S. C. C. J. Dallas, 60 F. R. 338 temus Author may restrain under common law imperfect reports of lectmres, 264 1894 Ellis V. Ogden Queen's Bench J. Collins, 11 T. L. R. 50 Right in photographs not paid for belongs to photographer, 239 1894 French v. Kreling U. S. C. C. J. Hawley, 63 F. R. 621 Printing of libretto for sole use of singers not publication, 181 1894 Gilbert v. Star Chancery J. Chitty, 11 T. L. R. 4 Newspaper report of play under rehearsal forbidden under com- mon law, 186 1894 Hanfstaengl v. Ct. App. L. Esher, [1895] i Q. B. 347 American Tobacco Co. Registration and deposit in England not necessary for foreign work, 313 1894 Hanfstaengl v. House of Lords [189s] A. C. 20 Baines Tableaux not infringement of pictures — "Design" does not cover UMeaux, 242 1894 Henderson v. U. S. C. C. J. Putnam, 60 F. R. 758 Tompkins Literary merit not requisite, 177 1894 Press Pub. Co. v. V. S. C. C. J. Wheeler, S9 F. R. 324 Falk Proprietorship of gratuitous photograph of actress remains with photographer, 238 1894 Social Register U. S. C. C. J. Green, 60 F. R. 270 Assoc. V. Howard Similar title enjoined as imfair competition, 262 1894 Springer v. Falk U.S.C.C. App. J. Lacombe, S9 F- R- 1°1 Composite photograph from two copyrighted portraits held an infringement, 244 1894 Werckmeister v. V. S. C. C. J. Townsend, 63 F. R. 808 Springer Copyright does not pass with sale of painting, 234; illustration of picture in exhibition catalogue not publication, 234 1894 Littleton v. Ditson U. S. C. C. J. Colt, 62 F. R. S97 Music sheets excepted from manufacturing provisions, 167 1894 West Pub. Co. V. V. S. C. C. J. Coxe, 64 F. R. 360 Lawyers' Pub. Co. Only proved "instances of piracy" in law digest enjoined, 258 189s U. S. act. Government documents not copsoightable 189s U. S. act. Penalties for infringement of photographs, etc. 1895-1905 State dramatic laws 189s Ditson V. Littleton U. S. C. C. App. Per curiam, 67 F. R. 905 AfSrming Littleton v. Ditson 664 COPYRIGHT 189s Bolton r. Aldin Queen's Bench J. Grantham, 65 L.J. Q.B. 120 Drawing remade from photograph infringement, 241 189s Chicago Dollar U. S. C. C. App. J. Baker, 65 F. R. 463 Directory Co. v. Chicago Dir. Co. Quantity of common errors evidence of infringement in com- pilation, 257 i8gs Ellis ji. Marshall Queen's Bench J. Charles, 11 T. L. R. 522 Right in photograph paid for vests in sitter, 239 189s Exchange Tel. Co. Queen's Bench L. Esher, M. R., [1896] i Q. B. V. Gregory 147 Information furnished to subscribers protected, 89 189s Fuller V. Blackpool Ct. of App. L. Esher, M. R., [189s] 2 Q. B. Winter Gardens Co. 429 Song in costume but without dramatic action, not dramatic piece, 176 189s Harper D.Ganthony U. S. C. C. J. Lacombe, Hamlin Copr. C. & D. 138 "Trilby" — monologues in costume following plot, a dramatic infringement, 82, 171 189s Harper v. Ranous U. S. C. C. J. Lacombe, 67 F. R. 904 Right of dramatization of "Trilby" included in copyright of novel, 170 189s Keeler v. Standard U. S. Sup. Ct. J. Shiras, 157 U. S. 659 Folding Bed Co. Sale of patented article absolute and complete unless restricted by contract, S4 189s Snow V. Mast U. S. C . C. J. Sage, 6s F. R. 995 Abbreviation of date ('94 for 1894) in copyright notice per- mitted, 130 189s Wheeler v. Cobbey U. S. C. C. J. Shiras, 70 F. R. 487 Damages dependent on forfeiture, within statutory 2 years, 272 1896 Webster v. Daly IT. S. Sup. Ct. J. Fuller, 163 U. S. ISS Aflnrming Daly v. Webster 1896 Gabriel v. McCabe U. S. C. C. J. Grosscup, 74 F. R. 743 License of song for a collection permits use in conbination or abridgment of such collection, 82, 256. 1896 GriflSth V. Tower Chancery J. Stirling, L. R. [1897] i Ch. 21 Publishing agreement not transferable as bankruptcy asset, 451 1896 Guggenheim !). Leng Queen's Bench J. Cave, X2 T. L. R.491 Printing illustration as separate supplement infringement, as outside licensed use, 236 1896 Ladd V. Oxnard U. S. C. C. J. Putnam, 75 F. R. 703 Leasing a book to subscribers is publication, 53 1896 Mead v. West Pub. U. S. C. C. J. Lochren, 80 F. R. 380 Co. Use from copyright book of non-copyright material not in- fringement, 257 TABLE OF LAWS AND CASES 665 1896 Mott V. Clow U. S. C. C. J. Grosscup, 72 F. R. 168 Illustrations in trade catalogue being "mere advertisements" not copyrightable, 237 1896 Pierce & BushneU U. S. C. C. App. J. Colt, 72 F. R. 54 Co. V. Werckmeister Exhibition without copyright notice considered publication, 233 1896 Ktt Pitts ji. George Ct. App. J. Lindley, [1896] 2 Ch. 866 Importation of foreign edition prohibited under British copy- right, 292; "proprietor" means owner of British copyright, 292, (25)6) 1896 Press Pub. Co. ». U. S. C. C. App. J. Lacombe, 73 F. R. 196 Monroe Publication without author's consent does not divest him of any lights, 45; broad interpretation of author's rights, 48 1896 Tree v. Bowkett, Chancery J. Kekewich, 74 L. T. (n. S.) 77 "Trilby" — rival dramatization, copying added scenes enjoined, 174 1897 XJ. S. act. Appointment of Register of Copyrights 1897 U. S. act. Penalty for false claim of copyright 1897 U. S. act. Unauthorized representation 1897 Hoyt V. Bates U. S. C. C. J. Putnam, 81 F. R. 641 Ownership of copyright property is question for state courts, 268 1897 Morrison v. Petti- U. S. C. C. J. Seaman, 87 F. R. 330 bone Uncompleted reproductions not exact copies and not forfeitable, 272 1897 Osgood V. Aloe U. S. C. C. J. Adams, 83 F. R. 470 Omission of name vitiates copyright notice though given in im- print, 128 1897 West Pub. Co. V. U. S. C. C. App. J. Lacombe, 79 F. R. 756 Lawyers' Pub. Co. Whole law digest enjoined, although only parts were infringe- ments, 258 1898 Bolton V. London Queen's Bench J. Mathew, 14 T. L. R. 550 Exhibitions Employer, giving to engraver only "general idea," not party liable for infringement, 240; lithograph outline from copyright picture, though with other details, held infringement, 244; parties ordering poster held not punishable for infringement by lithographer without their knowledge, 253 1898 Broder v. Zeno U. S. C. C. J. Morrow, 88 F. R. 74 Mauvais Indecent song not copyrightable — melody protected, 86 1898 Jewellers' Merc. N. Y. Ct. App. C. J. Parker, 155 N. Y. 241 Agency v. Jeweller's Wkly Pub. Co. Leasing a book to subscribers is publication, 53 666 COPYRIGHT 1898 Miles V. Amer. U. S. C. C. J. Lacombe, Hamlin Copr. News Co. C. & D. 29 Specific license for limited use of illustrations enforced, 236 1898 MaUoryii.Mackaye U. S. C. C. J. Wheeler, 86 F. R. 122 Employer entitled to copyright in dramatic works written under salary, 188 1899 Mackayeii.Mallory U. S. C. C. J. Wallace, 92 F. R. 749 App. "Modifying" Mallory ». Mackaye, but upholding right of em- ployer 1899 Bennett v. Can U.S. C. C. App. J. Thomas, 96 F. R. 213 Copyright invalidated (under old law) by failure to deposit writ- ten description of picture, 236 1899 Boosey v. Whight Ct. App. J. Lindley, [1900] i Ch. 122 Perforated music roll not "copy" of sheet music, 208; marginal directions neither music nor literary composition, 208 1899 Brady v. Daly U. S. Sup. Ct. J. Peckham, 175 U. S. 148 Single situation protected as integral part of drama, 191 ; dam- ages, not penalty, under copyright statute, 272 1899 Daly II. Walrath N.Y.App. Div. J. Bartlett, 40 App. Div. 220 Prior printing abroad forfeits American dramatic rights, 181 1899 Green ». Irish Irish Ct. of L. J. Fitz-Gibbon, [1899] i Ir. Independent App. Rep. 386 Newspaper Uable for infringement, though without knowledge, copyr. illustration printed as advertisement, 236, 253 1899 Holmes u. Hurst U. S. Sup. Ct. J. Brown, 174 U. S. 82 Copyright protects intellectual production of author, not merely the particular form. "Book" not confined to bound volume, 67 1899 McDonald 11. Hearst U. S. C. C. J. De Haven, 95 F. R. 656 Employer cannot be held to penal responsibility for act of agent, 271 1899 MaxweU v. Good- U. S. C. C. J. Seaman, 93 F. R. 665 win Playright in unpublished work, inherent under common law, 187 1899 Murphy v. Chris- N. Y. App. J. Cullen, 38 N. Y. App. tian Press Assoc. Div. Div. 426 Decision against restraint of trade not applicable to copyright monopolies, 50 1900 XJ. S. act. Hawaii and Porto Rico protection 1900 Bennett v. Boston U. S. C. C. App. J. Colt, 101 F. R. 445 Traveler Co. Suit must be brought under general copyright of newspaper, when portion is not specifically copyrighted, 272 1900 Dielman v. White U. S. C. C. J. Lowell, 102 F. R. 892 Contract with U. S. Govt, failed to reserve copyright on de- signs, 234 TABLE OF LAWS AND CASES 667 1900 Maloney v. Foote U. S. C. C. J. Pardee, loi F. R. 264 No infringement by acts before copyrighting, 274 1900 Monarch Bk. Co. U. S. C. C. J. Grosscup, Hamlin Copr. »• Neil C. & D. 30 Copies of copyrighted modifications of non-copyright pictures enjoined, 244 1900 Snow V. Laird U. S. C. C. App. J. Woods, 98 F. R. 813 Slight alteration on non-copjnrighted photograph does not justify copyright, 24s 1900 Walter v. Lane House of Lords [1900] A. C. 539 Reports of Rosebery 's speeches — no literary merit or labor need be shown to secure copyright, 68 1900 Falk V. Curtis Pub. U. S. C. C. J. Dallas, 100 F. R. 77 Co. "Person" includes partnerships and corporations, 273 1901 Falk V. Curtis Pub. U. S. C. C. App. J. Buffington, 107 F. R. 126 Co. Suit for penalties caimot precede forfeiture, 273. — Affirming Falk V. Curtis Pub. Co. 1901 Child V. N. Y. U. S. C. C. J. Hazel, no F. R. 527 Times Co. No penalty where copies are not literally "found in possession, " 272 1901 Doan, et al. v. U. S. C. C. App. J. Jenkins, 105 F. R. 772 Amer. Bk. Co. Rebound second-hand copies no infringement, but must be dis- tinctly marked, 263 1901 Marshall v. Bull Ct. App. L. J. Collins, 85 L. T. 77 Illustrations protected as part of book, 238; sale of electrotypes does not transfer copyright, 238 1901 Neufeld B. Chapman King's Bench J.Walton, Tme^ O. 31, '01 "All copies sold" includes periodical publication, 448 1901 NichoUs V. Parker King's Bench J. Wright, 17 T. L. R. 482 Specific license for use of illustration in specified periodical up- held, despite "custom of the trade," 236 1901 Stem V. Rosey D. C. C. App. J. Shepard, 17 App. Dist. Col. 562 Mechanical reproduction of copyrighted songs not preventable, 20s 1901 Trengrousei). "Sol" Chancery C.J.Alverstone, Times S. 26, '01 Ssmdicate Whole work infringement though less than a page pirated, 254 1901 Western Union v. U. S. Sup. Ct. J. Brewer, 181 U. S. 92 Call Pub. Co. When common law in states is in conflict, U. S. courts will en- force that of England, 44 668 COPYRIGHT iQoi Hegeman v. U. S. C. C. App. J. Wheeler, no F. R. J74 Springer Seizure without prior demand authorized, 274 1902 Musical (summary proceedings) copyright act 2 Edw. VII, c. 15 1902 Amer. Press Assoc. U. S. C. C. App. J. Jenkins, 120 F. R. 766 V. Daily Story Pub. Co. Innocent copying from reprint lacking copyright notice an in- fringement, 253 1902 Britain v. Hanks King's Bench J. Wright, 86 L. T. 765 Toy soldiers, artistically modeled, copyrightable as sculpture, 247 IQ02 Fraser v. Yack U. S. C. C. App. J. Jenkins, 116 F. R. 285 "Little Minister" — Foreigner, prior to 1891, could transfer ad- vance sheets only, not right to copyright, no 1902 Heme v. Liebler N. Y. App. J. Ingraham, 73 App. Div. Div. 194 Sub-license under limited lease of unpublished drama prevented under conunon law, 187 1902 Mifflin V. Button U. S. Sup. Ct. J. Brown, 174 U. S. 82 In joint authorship duplicate copyrights under different names not permissible, 102 1902 National Tel. News TJ. S. C. C. App. J. Grosscup, 119 F. R. 294 Co. V. Western Union News on ticker taps not copyrightable but unfair use enjoin- able, 89 1902 Patterson v. Ogilvie U. S. C. C. J. Lacombe, 119 F. R. 451 Variance of sub-title immaterial, 192 ; damages not barred by lim- itation as penalties, 273 1903 Graves v. Gorrie Privy Council Ld. Lindley, 89 L. T. iii Fine arts copyright act, 1862, does not protect outside United Kingdon, 246 1903 Hegeman v. U. S. Sup. Ct. Per curiam, 189 U. S. 505 Springer Affirming Hegeman v. Springer 1903 Barnes v. Miner U. S. C. C. J. Ray, 122 F. R. 480 Combination of songs, costume and cinematograph not a drama- tic composition, 17s 1903 Bleistein v. Don- U. S. Sup. Ct. J. Holmes, 188 U. S. 239 aldson Copyright can be entered in trading name instead of legal name, 102; circus posters protected — "A picture is none the less a subject of copyright that it is used for an advertisement," 237 1903 Bloom ti. Nixon U. S. C. C. J. McPherson, 125 F. R. 977 Parody, including quotation, not infringement, 190 1903 Champney v. Haag U. S. C. C. J. McPherson, 121 F. R. 944 Photograph from a photograph construed as infringemoit of photograph, and not of original painting, 243, 274 TABLE OF LAWS AND CASES 669 1903 Cleland v. Thayer U. S. C. C. App. J. CaldweU, 121 F. R. 71 Original photograph of uncopyrighted or uncopyrightable sub- ject protected, 241 1903 Dodges. Allied Arts N. Y. Sup. Ct. J. McCaU, Hamlin Copr. C. &D. IIS Artist can prevent alterations of paintings done on commission, 24s 1903 Edison v. Lubin U. S. C. C. App. J. Buffington, 122 F. R. 240 Entire moving-picture film one photograph protected by single notice, 242 1903 Frohman v. Weber N. Y. Sup. Ct. J. Clarke, Hamlin Copr. „ , C. & D. 151 Use of names of characters in plays not infringement, 192 1903 Kipb'ng V. Putnam U. S. C. C. App. J. Coxe, 120 F. R. 631 Changed binding of copyright work permissible, 263; elephant's head design not distinctive trade-mark, 263; no similarity to constitute unfair competition, 263 1903 Lawrence &Bullen House of Lords [1904] L. R. App. C. 17 V. Aflalo Proprietor of encyclopaedia "stood in the shoes" of writers as copyright proprietor, 99 1903 Lorimer v. Boston Mass. Sup. Ct. J. Morton, Pub. Week. 63:1386 Herald Burlesqued title in newspaper articles not enjoinable, 264 1903 Moore v. Edwardes King's Bench L. C. J. Alverstone, Times Mr. 3, '03 Use of scenario from rejected ms. for unauthorized work pun- ished, 176 1903 Nethersole ». Bell Chancery J. Farwell, Times J\. 4, 31, '03 Rival dramatization as modified from other version enjoined, 174 1903 Rinehart 11. Smith U. S. C. C. J. McPherson, 121 F. R. 148 Replevin not the proper form of copyright suit, 273 1903 Stone 9. Long, King's Bench Master Chitty, Copr. Cas. '01- '04, 66 Publisher responsible for loss of ms. by employee's negligence, 442 1903 Thompson Co. v. U. S. C. C. App. J. Coxe, 122 F. R. 922 Amer. Law Book Co. Use of list of cases, made from copyright digest, as guide to re- ports not infringement, 258; " equity will not protect a pirate from infringements of his piratical work," 258 1903 Victor Talking IT. S. C. C. App. J. Baker, 123 F. R. 424 Mach. Co. V. The Fair Patent as a monopoly, 50 1903 Wagner v. Conried U. S. C. C. J. Lacombe, 125 F. R. 798 Previous printing abroad forfeits American playiight in music, 181 670 COPYRIGHT 1903 Wright V. Eisle N. Y. App. J. Woodward, 86 App. Div. Div. 356 Filing of architectural plans in public office constitutes publi- cation, 242 igo4 U. S. act. Protection of works, Louisiana Purchase Exposition 1904 Bisel V. Welsh U. S. C. C. J. HoUand, 131 F. R. 564 Repetition of errors evidence of author's infringement of his own earlier work, 257 1904 Encyclopaedia Brit- U. S. C. C. J. Lacombe, Pub. Week. tanica Co. v. Tribune Assoc. SS:i4S8 Condensations of copyright articles from cydopsdia enjoined, 261 1904 Gannet ». Rupert U. S. C. C. App. J. Coxe, Pub. Week. 55:69 " Comfort " as title of periodical protected as common law trade- mark, 84; court should arrest pirate before he makes oS with plunder, 274 1904 Straus V. Amer. N. Y. Ct. App. C. J. Parker, 177 N. Y. 473 Pub. Assoc. Agreements to restrict prices legal on copyright books; contrary to statute on non-copyright books, 57 1905 U. S. act. Ad interim protection 190S U. S. trade-mark act 1905 Eraser v. Edwardes King's Bench J. Darling, Times Mr. 23-30, '05 Use of scenario from rejected ms. for unauthorized work pun- ished, 176 1905 Harper 11. Donohue TJ. S. C. C. J. Sanborn, 144 F. R. 491 Analysis of author's rights, 47; omission of notice on foreign- made edition does not vitiate Amer. copyright, 133 190S Hills V. Hoover U. S. C. C. J. Holland, 136 F. R. 701 Additional words in copyright notice harmless superfluity, 128 1905 Lucas V. Moncrieff Chancery J. Warrington 21 T. L. R. 683 FubUsbing agreement released by bankruptcy of publisher, 443 1905 Sampson & Mur- U. S. C. C. App. J. Putnam, 140 F. R. 539 dock Co. V. Seaver Radford Verification from rival directory beyond fdr use, 255 1905 Slingsby v. Bradford Chancery J. Warrington, [1905] W. N. 12a Co. Copying of fraudulent material not punishable in equity, 258 1906 Musical copyright act 6 Edw. VII; c. 36 1906 U. S. trade-mark act 1906 Burk V. Johnson U. S. C. C. App. J. Adams, 146 F. R. 209 Copyright cannot protect schemes or method of doing business, 61 1906 Davis V. Benjamin Chancery J. Eady, L. R. [1906] 2 Ch. 491 Sheet of advertising illustrations held a book, 73 1906 Donohue v. Harper U. S. C. C. App. Per curiam, 146 F. R. 1023 Affirming decision in Harper v. Donohue TABLE OF LAWS AND CASES 671 1906 Hartford Printing U. S. C. C. J. Piatt, 146 F. R. 332; Co. V. Hartford Directory Co. 148 F. R. 470 Gloss receipts less cost awarded as damages, for wholesale copy- ing, 27s 1906 Macmillan v. Dent Ct. App. J. Vaughan, [1907] i Ch. 107 Charles Lamb letters — copyright separate from material object, 92 1906 Rex II. Willets Com. Serj. Times Ja. 20, '06 Criminal sentences in conspiracy of cheap music pirates, 277 1906 Ward,Lock&Co. B. Chancery J. Kekewich, L. R. [1906] a Ch. Long SSo Agreement to write a book assignable after completion of book, 441 1906 White-Smith v. V. S. C. C. App. Per curiam, 147 F. R. 226 Apollo Perforated roll not copy in fact of staff notation, 204 1906 Wooster v. Crane U. S. C. C. J. Van Devanter, 147 F. R. 515 App. Author restrained from selling modification of copyright work previously assigned, 442 1907 Patents and designs act 7 Edw. VII. c. 29 1907 American Tobacco U. S. Sup. Ct. J. Day, 207 U. S. 284 Co. V. Werckmeister Exhibition with restriction as to copying, not publication, 232, 235 1907 Brackens. Rosen- U. S. C. C. J. Kohlsaat, 151 F. R. 136 thai Photograph infringes copyright in statuary, 243 1907 Dutton V. Cupples N. Y. App.Div. J. Scott, Pub. Week. 71: 630 & Leon Imitation of style of series imfair competition, 263 1907 Jude's"Lieder- Ct. App. C. J. Alverstone, L. R. [1907] tafel" case i Ch. 651 Assignment expunged from record, 447 1907 Philip V. Pennell Chancery J. Kekewich, L. R. [1907] 2 Ch. S77 Publication permitted of biographical information from receiv- ers of letters, 92 1907 Merriam v. Ogilvie U. S. C. C. J. Colt, 149 F. R. 858 Use of name "Webster" not restrainable except where public is misled, 261 1908 Merriam v. Ogilvie U. S. C. C. App. J. Aldrich, 159 F- R- 638 Affirming Merriam v. Ogilvie 1908 White-Smith v. U. S. Sup. Ct. J. Day, 209 U. S. i Apollo Records not copies or publications of copyright music, 54, 204. Affirming White-Smith v. ApoUo 672 COPYRIGHT 1908 Bamforth v. Douglas U. S. C. C. J. McPherson, 158 F. R. 355 Post Card Co. Unfaii competition not lestiainable if copyrightable work is not copyrighted, 264 1908 Bobbs-Merrill Co. U. S. Sup. Ct. J. Day, 210 U. S. 339 V. Stiaus Restriction of price not enforceable in connection with copyright notice, 55, 57 1908 Clinical Obstetrics, Chancery J. Warrington, Copr. Cas. '05- in re '10, 176 "Exclusive right of publication" a license, not assignment, 447; assignment record expunged, 447. 1908 Globe Newspaper U. S. Sup. Ct. J. Day, 210 U. S. 356 Co. V. Walker No damages outside statutory protection where no copies were found in possession, 272 1908 Jones ». Amer. Law N. Y. App. J.Houghton, i2sApp.Div. Bk. Co. Div. S19 Denying right of author to have name appended to cyclopedic contribution, 100 1908 Kamo V. Pathfi King's Bench J. Jelf, 99 L. T. 114 Frfaes Moving pictures not infringement, 177 1908 Landa v. Greenberg Chancery J. Eve 24 T. L. R. 441 Nam de plume of settled use protected outside copyright or trade-mark, 99 1908 Mansell v. Valley Ct. App. Cozens-Hardy, L. R. [1908] 2 Printing Co. M. R. Ch. 441 Common law concurrent with statutory protection of unpub- lished works, 61 1908 Royal Sales Co. v. U. S. C. C. J. Ward, 164 F. R. 207 Gaynor Monogram not copyrightable, 70 1908 Sarpy v. Holland Ct. App. Cozens-Hardy, M. R., L. R. [1908] 2 Ch. 198 Copyright reservation in foreign language sufBdng, 313; no for- malities requisite under international copyright, 313 igo8 Scribner v. Straus U. S. Sup. Ct. J. Day, 210 U. S. 332 Agreement to restrict prices not proven by notice on bills, etc., 55 igo8 Share Certificate Div. Ct. J. Bigham, Copr. Cas. 'os-'io, Book, in re 173 False entry expunged from registry, 150 1908 Straus V. American N. Y. App. Div. J. Gray, 127 App. D. 936 Publishers' Association Agreements to restrict price legal on copyright books, 57; dis- senting opinion, 57 TABLE OF LAWS AND CASES 673 1908 Tate V. FuUbrook Ct. App. L. J. Vaughan L. R. [1908] 1 Williams, K. B. 821 Writer of dialogue sole author of musical sketch in England, 176 igoS United Dictionary U. S. Sup. Ct. J. Holmes, 208 U. S. 260 Co. V. Mertiam Omission of notice on foreign-made edition sold only for use there does not vitiate Amer. copyright, 134 190S Dam V. Kirke La U. S. C. C. J. Hazel, 166 F. R. 589 Shelle Co. Reassignment to author of copyright in periodical contribution, loi ; right of dramatization included in copyright of story, 171 ; full profits awarded as damages, 171 igo8 Harper v. Kalem U. S. C. C. J. Lacombe, Copyright notice in book protects illustrations against moving picture reproduction, 77 1909 U. S. Copyright code 1909 Banks Law Pub. U. S. C. C. App. Per curiam, 169 F. R. 386 Co. V. Lawyers Co-operative Pub. Co. Affirming that arrangement of cases in sequence, pagination, etc., are not protectable details, 259 1909 Bong V. Campbell U. S. Sup. Ct. J. McKenna, 214 U. S. 236 Art Co. Citizen of an unproclaimed country caimot indirectly obtain American copyright, no 1909 Bosselman ji. Rich- U. S. C. C. J.Ward, 174F. R. 622 ardson App. Copyright claimant other than author must prove his claims, 107 1909 Caliga V. Inter- U. S. Sup. Ct. J. Day, 215 U. S. 182 Ocean Newsp. Co. Re-copyright on finishing picture invalid, 231 1909 Chicago Tribunes. U. S. C. C. J. Grosscup, Pub. Week. 111. Printing & Pub. Co. 76 : 643, 957 Peary letters — copyright in newspaper letter as book upheld, 103 1909 N. Y. Times v. U. S. C. C. J. Hand, Pub. Week. Press Pub. Co. etal. 76 = 643, 957 Peary letters — agreement for newspaper letters did not au- thorize copyright as book, 103 1909 Consolidated Gas U. S. Sup. Ct. J.Peckham, 212 U. S. 19 Co. State has sovereign power to limit prices — in case of public franchise corporation, 207 1909 Freeman v. Trade U. S. C. C. J. Donworth, 173 F. R. 419 Register Copyright notice on editorial page invalid, 131 1909 Frohman v. Ferris 111. Sup. Ct. J. Farmer, 238 111. Rep. 430 Performance of play not publication, 181 674 COPYRIGHT 1909 Glaser v. St. Elmo U. S. C. C. J. Holt, 175 F. R. 276 Co. Title of novel, out of copyright, not protectable in drama, 192 1909 Green v. Luby U. S. C. C. J. Noyes, 177 F. R. 287 Error in classification does not invalidate copyright, 136 1909 Harper v. Kalem U. S. C. C. App. J. Ward, 169 F. R. 61 Moving pictures may infringe book copyright, 176, 242 ; both speech and action not necessaty in dramatic performances, 176; illustrations as such do not infringe book copyright, 237 1909 Heinemannji. Smart Chancery J. Parker, Times, Jl. 15, '09 Set Pub. Co. Innocent publisher responsible for acts beyond authority given to Uterary agent, 437 1909 Hervieu v. Ogilvie U. S. C. C. J. Martin, 169 F. R. 978 Printed drama not subject to manufacturing provisions as "book," ISS. 168 1909 Hunter ». Clifford West. Co. Ct. J. Lush, TmexN.iz. '09 Bight to copyright lapsed on work of art sold without registra- tion, 247 1909 Kamo V. Path6 Ct. App. L. J. Vaughan 100 L. T. 260 FrSres Williams, Exhibitor, not manufacturer of film, responsible party, 177 1909 Saake ». Lederer U. S. C. C. App. J. Buffington, 174F. R. 135 License to perform does not imply authority to copyright, 107 1909 Scholz V. Amasis Ct. App. L. C. J. Farwell, Times My. 19, '09 Only substantial copying of written dialogue infringes drama in England, 176 1910 Dam V. Kirke La U. S. C. C. App. J. Noyes, 175 F. R. 902 Shelle Co. Following decision in lower court 1910 De Jonge v. Breuk- U. S. C. C. J. McPherson, 182 F. R. 150 er & Kessler Artistic designs for cover paper copyrightable, 237; separable designs must have separate copyright notices, 242; subject cannot be protected both under copyright and trade-mark acts, 237 1910 Eliot & Collier v. N. Y. Sup. Ct. J. Newburger, 120 N. Y Jones, et al. Supp. 989 Use of "Dr. Eliot's five-foot shelf" prohibited as involving de- ception, 8s 1910 Ellis V. Hurst N. Y. Sup. Ct. J. Greenbaum, 128 N. Y. Supp. 144 Use of an author's real name on pseudonymous non-copyright works not restrainable, 98 TABLE OF LAWS AND CASES 675 1910 Gilbert v. Workman Chancery J. Neville, Times Ja. 19, '10 Interpolation of song without consent o£ author of opera en- joined, 100 1910 Hein v. Harris U. S. C. C. J. Hand, 175 F. R. 87s Musical copyright infringed by transposition, 170 Affirmed in same year by U. S. C. C. App. 1910 Larby v. Love King's Bench J. Bucknill, Copr. Cas. 'os-'io, 291 Upholds prohibition against underselling in bill of sale, 57 1910 Monckton v. Gramo- Chancery J. Joyce, Times D. 6, '10 phone Co. Common law cannot protect after publication, 62 1910 Park & Pollard v. U. S. C. C. J. Philips, 181 F. R. 431 Kellers trass Whole work enjoined where infringing parts were inseparable, 258 1910 Press Assoc, v. Re- Chancery J. Warrington, Times D. 8, '10 porting Agency Election returns protected agdnst "unfair competition," 89 1910 Record & Guide Co. U. S. C. C. J. McPherson, 17s F. R. 156 ». Bromley Omission of date vitiates copyright notice though given on same page, 128; substitution of name in copyright notice without authority of law voids copyright, 136 1910 Rex II. Bokenham Cent. Crim. Ct. Com. Serj., Times Jl. 22,'io Piracy from surreptitiously obtained copies of poems punistied by imprisonment, 277 1910 Stern v. Remick U. S. C. C. J. Hand, 175 F. R. 282 Sale of single copy held to constitute publication, 127; use of Roman for Arabic numerals in copyright notice immaterial, 130 1910 West Pub. Co. V. U. S. C. C. App. J. Ward, 176 F. R. 833 Thompson Co. One copyright notice suffices to cover earlier copyrights of parts, 132; list made to run down cases permissible, but extensive copying from digest an infringement, 259 1910 White-Smith v. V. S. C. C. J. Brown, 180 F. R. 256 Goff Renewal personal to author or heirs only, except possibly in case of work assigned before publication, 116 191 1 Copyright act i & 2 Geo. V c. 46 1911 Shepard v. Taylor U. S. C. C. J. Hazel, 185 F. R. 941 Common errors prima facie proof of infringement, 2SS 191 1 White w. Bender U. S. C. C. J.Ray, 185 F. R. 921 Citations may be utilized for verification, but bodily transfer is infringement, 257 INDEX Leading references are in black face figures. References to statutes are desig- nated by § (without prefix referring to the American code, with preceding E refer- ring to the new British code, C to Canadian measure and Au. to Australian code). International Copyright Union conventions by I, and Pan American conven- tions by P ; those to U. S. Copyright Office Rules and Regulations are preceded by R. The page numeration also indicates character of reference, pp. 1-41 covering historical portion; pp. 42-310, specific subject chapters, chiefly Ameri- can and British; pp. 311-372, international copyright; pp. 373-429, copyright in other countries, pp. 430-462 ; business relations and literature. Law cases are followed by date, serving as reference to chronological table. INDEX Abandonment, 121. Abemethy v. Hutchinson (1825), 90. Abridgment, 64, 80, 82, 145, 199, 255, 392; § 6, 468; R. § 18, soo; Au. § 13, 584; § 28, 587; §29, 588; 1. 614. Account books, noncopr., 71; R. § 5, 496. Accounts. See Damages. Acrobatic tricks noncopr., 163; R. § 8, 497. Actions. See Suits. Acts of Parliament, Crown copr., 123. Ad interim copr. See Interim copr. Adamnan, 9. Adams, G. E., 362. Adaptation, 12, 30, 42, 43, 64, 113, 163, 170, 197, 199, 210, 243, 319, 326, 328, 392, 403, 40s; § I (b), 46s; § 6, 468; R. § 10, 498; Au. § 13, 584; 1. 604, 614, 615; P. 634, 651. Additions, 75, 77, 174; P. 651; by publislier, 100. See also Editions, new. Addresses. See Oral work. Administrator, 95, 102, 104; § 8, 469; R. § 2, 495 ; C. § 2, 5SS- See also Heir. Advertisements, 69, 71, 73, 236, 237; R. § s, 496; C. § 14, 564. Advertising labels, 223; novelties, 72, 223, 224;R. §r2,498;§i6,499. .Slolian Co., 204. Affidavit of manufacture, 88, 136, 138, 139, IS4, 158, 167, 229, 303, 397, 511; § 16, 472; § 17, 472; § ss, 484; R. § 32, S04; § 33, 505; § 34, 506; § 35, S06; false, I2r, 126, 144, 158; §17, 472- Agent, 286; literary, 43s. See also Publisher. Agreements. See Contract. Alaska, 39, 108, 270; § 34, 481. Albert, Prince. See Prince. Aldus, 13, 14. Algiers, 400, 418. Alien. See Foreign author. Almanacs, 21, 38. Alterations, 75, 100, 101, 174, i99, M3, 252, 2S4, 414, 433, 438; E. § 19 (2), 53°, (7) S32; P. 651. 5ee afao Editions, new. America. See United States, Canada, Latin America, Pan American, names of coun- tries, etc. Amer. (Authors) Copr. League, 118, 156, 2i4i 356, 358, 359, 361, 367, 370, 430. 454- Amer. Bar Assoc, 46, 371. Amer. Book Co. v. Doan (1901), 263. Amer. Book Co., importation case, 285. Amer. Dramatists Club, 194. Amer. Press Assoc, v. Daily Story Pub. Co. (1902), 253. Amer. Publishers' Assoc, 55. Amer. Publishers' Copr. League, 360, 455. Amer. Tobacco Co. See Werckmeister. Amsterdam Literary Congress (1883), 314. Animal shows, noncopr., 163; R. § 8, 497. Anne, Statute of (1710), 6, 23, 24, 28, 34, 35, 108,125,265,373. Annotations, 69. Annulment of copr. entry, 121. AnonjTnous and pseudonymous works, 87, 98, loi, 113, lis, 120, 122, 124, 129, 137, 319, 328, 333, sii; § 23, 474; R. § 24, 501; § 3°, 503; C. § 24, 568; in other coun- tries, 151, 319, 328, 329, 403-29; I- 610, 617; P. 634, 650. Antwerp literary congress (1885), 314. Appeal in copr. cases, 36, 269, 272, 404, 434; § 38, 481; E. § 12, 525, 552; C. § 6 (2), 560. Appleton, Nathan, 355. Appleton proposal (1872), 350. Appleton, W: H., 360. Application, 16, 63, 95, 96, 120, 136-39, 389; § 5, 467; R- § 29, 502; § 30, 503; § 31, 503; § 38, 507; § 39, 507; C. § 7 (5) 561; § 25, 568; forms, 139, 168, 227, 229, 511; R. § 31, 503; for renewal and extension, 115, 116; § 23, 474; § 24, 47S; R- § 46, S09; P- 638. Appraisal of copyrights, 452. Appraisers, Bd. of Gen., 292. Apsley, Ld. Chancellor, 80. Archbold ». Sweet (1832), 443. 68o INDEX Architectural drawings, 224, 243, 248-50, 318, 326, 332, 336; R. § 14, 498; I. 603, 604; P. 634, 637, 649. Architecture, works of, 33, 242, 248-50, 277. 321, 326, 327, 375, 376, 404, 415, 416; E. § I, § 2, 518; § 9, 524; § 35, 542; C. § 2, SSS; § 4, SS8; § 10, 562; I. 603, 604, 608. See also Sculpture. Areopagitica, Milton's, 22. Argentina, 62, 317, 323, 331, 332, 425, 636, 643, 652- Ariosto, 14. Armarium, 8. Arnell,S:M.,348. Arnold, Matthew, 457. Aronson v. Fleckenstein (1886), 192. Arrangement, 42, 43, 45, 64, 73, 81, 163, 169, 188, 197, 202, 209, 319, 326, 392; § I (b), 46s; § I (e),466; § 6, 468; R. § 10, 498; C. § 2, 5ss; Au. § 13, 584; I. 604, 614, 615; P. 634, 651. Arrangement of material, copr. in, 69, 73, 256. Arthur, President, 358. Articles. See Periodical contribution. Artist. See Artistic work. Author. Artistic copr., 222-50. See also Artistic work. Artistic copr. society, 32. Artistic craftsmanship, 376; E. § 2 (i), 519; §35(i).S42;C.2,555;§4,SS8- Artistic work, 37, 222-50, 375, 387, 388; Au. §§ 34-44, 589-91; I. 603; P. 633, 637, 642, 649; classification and definition, 61, 63, 172, 198, 223, 318, 326, 332, 336, 393; § 5 (g), 468; R. § 12, 498; E. § I, S17; § 35, 542; C. § 2, sss; Au. § 4, 580; § 34, 589; I. 603, 616; P. 633, 637, 649; duties, 288; exhibition, 224, 231, 234, 250, 322, 327; E. § I (3), 518; C. §2, 556; 1.608; formali- ties, 127, 140, ISO, 225-30, 23s, 388; § 18, 472; R. § 25, Soi; C. § 3, 557, § 26, 568; infringement, 238; § 25 (b), 476; I. 614; P. 634, 639, 651; manufacturing provi- sions, 156, 160, 228, 246, 391, 392, 393; § IS, 471; C. § 3, 557; Au. § 35, 590; ma- terial property, 222, 228, 234, 398; in other countries, 151, 247-50, 398-429; photographs of, I. 606; publication, 234; special rights, 42, 46, 223, 264, 376; § i (b), 465; E. § I (2), § 2, 518; C. § 2, 556; § 4, SS8; I. 613; P. 639, 651; term, 230, 245-49, 374-429; unpublished works, 86, 119, 144, 225, 226, 230; § II, 470; R. §§ 17-21, 499-500. 5ee a/io Alterations, Architecture, Engravings, Photographs, Reproductions, Sculpture, etc. Assets, copyrights as, 451. Assignment of contract, 432, 441, 443, 444, 447; of copyright, 47, 60, 61, 98, loi, 104, no, 113, 123, 135, 189, 228, 234, 261, 295, 306,377,393,434; §§ 41-44,482; § 46,483; § 61, 487; R. §§ 41-43, S08; E. § 5, 521; § 19,532; § 24, SiS\ C. § 7, 560; § 30, 569; § 33, sn; Au. §§ 24-26, 587; §§ 42-43, S9I^ of renewal rights, 104, 106, 116; R. § 48, 509; record of, 36, 49, 105, 189, 306, 387, 428; §§43-45,482; §61, 487;R.§§ 41-42, 508; E. § 5, S2i; C. § 7 (3), s6o; Au. § 66, 599; reversion of, 123, 378, 410, 425, 429; E. §4, 522; C. §33,571. Assigns, 24, 35, 50, 92, 95, 106, 113, 114, 116, 123, 318, 321, 410, 414, 415, 425, 429; § 8, 469; R. § 2, 495, § 48, 509; E. § 5 (3), 522; C. § 2, 555; §7 (6), 561; § 33, 571; Au. § 4, 580; I. 606; P. 637, 649. Assistant Register of Copyrights, 297, 300, 302; § 48, 483. Assoc, for reform and codification of law of nations, 355. Assoc. UtUraire el artistique internationah, 32,209,314,356. Astrological charts noncopr., 223; R. § 11, 498. Attorney-General, opinions, 104, 116, 143, 159, 212, 229, 284, 285, 287, 291, 309, 337, 4S6, 514- Aulic council, 11. Australia, 113, 152, 160, 168, 188, 189, 197, 246, 29s, 310, 321, 375, 382, 391-94; E- § iS (i), 543; code of 1905, 391-94, text of, 580-602,1. e. preliminary, Au. §§ 1-8, 580- 82; administration, Au. §§ 9-12, 582-84; literary, musical and dramatic copr, Au. §§ 13-33, 584-89; artistic copr., Au. §§ 34-44, 589-91; infringement, Au. §§ 45-61, 591-98; international and state copr., Au. §§ 62-63, 598; registration, Au. INDEX 68 1 §§ 64-76, 598-601; miscellaneous, Au. §§ 77-791 601-02. Austria, 112, 123, 197, 316, 340, 405, 489. See also Hungary. Author, 7, 8, 3S, 95-ii3, i49, 162, 214, 218, 318, 321, 326,327, 333;E.§§ 1-5,517-522; § 6, (3) 523; § 24, 536; I. 606, 608, 609; P. 633> 637i 649; definition, 66; § 62, 488; R. § 301 S03; Au. § 4, 580; first owner, 95, "3, 247, 393; E. § 5, 521; Au. § 18, 586; § 37, 591; name, 11, 98, 100, 129, 151, 277, 3i9> 329. 333, 337, 427; R- § 3°, S03; E. § 6 (3), 522; C. § 25, 568; I. 617; P. 634, 639, 650; relations with publisher, 402, 409, 430-52; reputation of, 243, 245, 264, 275. See also Anonymous and pseu- donymous, Consent, Contract, Corpo- rate works, Employer, Foreign author, Joint authors. Owner, Proprietor, Resi- dence, Rights, etc. Authors Club, 372. Authorized copies prohibited importation, 279, 280, 513; §31, 478. Badges noncopr., 224; R. § 16, 499. Bahamas, 391. Baker v. Taylor (1848), 129. Baldwin, J. D., bill and rpt. (1868), 348. Balkan states, 414. Ballet. See Choregraphic works. Bamforth v. Douglas Post Card Co. (1908), 264. Bands, musical, 206; § 25 (e), 477. Bank deposit books, noncopr. 71; R. § 5, 496. Bankruptcy, 47, 409, 433, 443, 45i- Banks v. McBivitt (1875), 251- Banks Law Book Co. v. Lawyers Co-op. Pub. Co. (1909), 259. Banishment, 422. Banning, H. B., bill (1874), 353. Barbaro, 13. Barchfeld, A. J., bill (1908), 370. Barfield v. Nicholson (1824), 441. Barnes ». Miner (1903), 175. Barrie, J. M., no. Basel, II, 12. Beaconsfield, memoir of, 90. Beck, J. B., bill (1872), 352. Beckford v. Hood (1798), 27. Beere 0. Ellis (1889), 173. Belgium, in, 124, 198, 316, 317, 318, 320, 322, 323, 330, 331, 340, 400, 489, 636; mechanical music, 213, 340, 398, 490. Belgravia case, 75, 84, 85. Bell's Life, 83. Bell V. Locke (1840), 83. Ben Hur cases, 77, 176, 237, 242. Benaliis, 14. Bennett v. Boston Traveler Co. (1900), 272. Bennett v. Carr (1899), 236. Benziger Brothers, importation, 159, 283. Bequest, copr. subject to, 104; § 42, 482. See also Assignment. Bergne, Sir H: 325. Berlin conference, 323-25; convention, 62, 94, 118, 152, 199, 209, 250, 296, 323, 326- 30, 372, 415, 456; text of, 603-32. See also International conventions. Berlin Photographic Co. See Werckmeister. Berne conferences, 314, 316, 317, 358, 360; convention, 31, 185, 209, 248, 296, 312, 313, 318, 320, 329, 375, 381, 456; proph- ecy of, 345; text of, 603-32. See also International conventions, Paris acts. Besant, Walter, 31, 457. Bible, 21, 96, 123. BiUiographie Universelle, 83. . Bibliography of copr., 453-62. Bills in Congress, 344-71. See also Names of Congressmen. Binding, affidavit of Amer., 153, 155, 511; § 15, 471; § 16, 472; R. § 27, 502; § 32, 504. Bindings, importation, 121, 159, 283, 287, 291. Birrell, Augustine, 51, 458. Bisel V. Welsh (1904), 257. Bizet's "Carmen," case, 120, 188. Black V. Allen (1893), 261. Black V. Ehrich (1891), 261. Black V. Murray (1870), 75. Blackstone, 2, 6, 81. Blackwood v. Brewster (i860), 445. Blaine, Secretary, 356. Blank book, 69, 70, 71, 72; R. § 5, 496. Blank forms, 6g, 70, 72. Blasphemous works. See Immoral. Blatchford, J., 175. Bleistein v. Donaldson (1903), 102, 237. 682 INDEX Blind, works for, 154, 279, 280; § 15, 47^; § 31, 478. Bloom V. Nixon (1903), 190. Blue-book (1878), 30, 459 (1909), 32, 459. Board of Trade, regulations, E. § 3, 520; § IS (S), 527; § 19 (3). S3I- Bodleian Library. See University deposit. Bobbs-Merrill v. Straus (1908), sSi $6. Bogue V. Houlston {1852), 76. Bolivia, 331, 332, 336, 427, 636, 643. Bolton !). Aldin (1895), 241. Bolton V. London Exhibitions (1898), 240, 244, 2S3- Bond of Register of Cop5Tights, 299, 303; § so. 484- Bong V. Campbell Art Co. (1909), no. Book, 63, 76, 326, 332, 392; § s(a), 467; Au. § 13. S8s; I- 603; P. 633, 639, 651; appli- cation form, 139, S12; catalog of copr. entries, 300; definition, 68-72; R. § 4, 496; E § 15(7), 527; Au. § 4, 580; duties on, 288, 291; early English restriction, 19, 20; importation, 279-96; §31 (d), 479; interim protection, 146; § 9, 469; § 21, 474; R. § 28, S02; R. § 3S, 506; notice, 127, 130, 131; §9, 469; § 18, 472; § 19, 473; C. § 3 (2). SS7; registration, 132, 306; § 61, 487; E. § 15, 527; C. § 22, 567; § 26, s68. See also Im- portation, Literary work, Manufacture, etc. Book of Common Prayer, 21, 123. Bookseller. See Publisher. Book-fairs, German, 11, 13, 15. Boosey v. Jefferys. See Jefferys n. Bcosey. Boosey v. Whight (1899), 208. Bosselman v. Richardson (1909), 107. BSrsenblatt, 403. Boucicault ». Chatterton (1876), 184. Boucicault v. Delafield (1863), 184. Boucicault v. Fox (1862), 97. Boucicault v. Hart (187s), 149. Bowker, R: R., 214, 370, 455. Bowker-Solberg volume, 359, 453. Bracken v. Rosenthal (1907), 243. Braddon, Miss, 83, 173. Brady, 191. Brady v. Daly (1899), r9i, 272. Brazil, 124, 152, 198, 201, 248, 331, 33S> 336, 425, 636, 642, 652. Breckinridge, W: C. P., bill (1888, '89), 361." Briggs, W: 4S9. Bristed, C: Astor, bill (1872), 351. Britain n. Hanks (1902), 247. British copr., early protection, 6, 19-23, 24; laws, 24-34, 456; scope, 61; subject-mat- ter, 68, 78, 90, 94; translations, 78; lec- tures, 91; ownership, 106, 108; assignment, 106, 190; residence, 108; term, 25, 121, 124, 188, 374; formalities, 125, 150, 189, 310. 373-74; publication, 49, 109, 373, 376. 377i patent proviso, 161; dramatic and musical, 171, 174, 178, 181-85, 189, 190, 19s, SS°-S4> performance as publica- tion, 181, 184; mechanical reproduction, 208; artistic, 246, 548-49; exhibition as publication, 232; remedies, 277; importa- tion, 18, 292; registration, 189, 310; inter- national, 31, 32, 108, III, 184, 311, 316, 317, 318, 320, 323, 330, 374, 375, 381; authors' address, 341 ; Palmerston invita- tion, 346; Clarendon treaty, 349, 354; Granville negotiations, 355; literature, 456-60; new code, 32, 61, 93, 90, 91, 94, 109, 113, 122, 151, 172, 178, 184, 189, 190, 193, 197, 208, 242, 247, 246, 277, 293, 374-80; text of, 517-47, i-e- rights, E. § i- 5, 517-22; civil remedies, E. § 6-10, 522- 24; summary remedies, E. § 11-13, 524- 25; importation, E. § 14, 525; delivery to libraries, E. § 15, 527; special provisions, E. § 16-24, S28-36; application to British possessions, E. § 25-28, S36-38; interna- tional copr. E. § 29-30, 539-41; supple- mental provisions, E. § 31-37, 541-44; schedules, E. 545-47; unrepealed acts, 548-54. See also Australia, Canada, New- foundland, New Zealand, South Africa, India, etc.; British Museum, Crown, Sta- tioners Hall, University; Designs, Patents; also specific subjects. British Empire, 24-34, 373-97. See also British copr. British Guiana, 391. British Honduras, 391. BritishMuseum, deposit, 122, 150,310, 312, 374, 378, 386, 391; E. § 15, 527; C. § 27, 568. British possessions (colonies, dominions). INDEX 683 380-97; term, 119, 188, 246; formalities, 151; manufactviring provisions, 160, 168; dramatic and musical works, 168, 189, 190; importation, 294; copyright offices, 310; international 31, 381. See also Brit- ish copr., also individual names. British Soc. ol Authors, 31, 457. British West Indies, 391. Broder 11. Zeno Mauvais (1898), 86. Brooke v. Chitty (1831), 442. Brooklyn Photogravure Co., 244. Brown, H. F., 16. Brussels literary congress (1884), 314, Bryant, W:C., 347, 348. Bryce, Lloyd S., bill (1888), 361. Buckles noncopr., 224; R. § 16, 499. Buckley, S: 29. Buda-Pesth, telephone newspaper, 217. Buenos Aires conference, 332, 336; conven- tion, 113, 152, 201, 250, 296, 332, 336, 337, 419; text of, 649-652. See also Interna- tional conventions. Pan Amer. Union and names of countries. Buildings. See Architecture. Bulgaria, 414. Bullen V. Aflalo (1903), 99. Bulwer-Lytton's act (1833), 182. Bureau of Int. Copr. Union, 319, 329, 330; I. 622; Pan Amer., 335, 336; P. 642-647. Burk V. Johnson (1906), 61. Burke, P: 457. Burlesque, 190; Au. § 4, 582. Burlesqued title, 264. Burrow-Giles Lith. Co. v. Sarony (1884), 67, 129, 240. Business relations, 430-52- Buttons noncopr., 224; R. § 16, 499. Butterworth, Benjamin, bill (1890), 362. Cable V. Marks (1882), 242. Calculations, mathematical, 70. Calendars, 38, 69, 71; R. § S. 496- California copr. legislation, 39, 194. Caliga !). Inter-Ocean Newspaper Co. (1909), 231. Callaghan v. Myers (1888), 130. Cambridge. See University deposit. Canada, iig, 151. 16°. 168, 188-90, 246, 294, 310. 321. 37S. 381, 382, 383-90, 460; E. § 35 (i). 543; laws, 29s, 383-86, 456; code of 1911, 386-88, text of, 555-79, i.e., interpretation, C. § 25, 55; conditions of copr., C. § 3, SS7; infringement, C.§ 4, 5S8; term, C. § s, 559; license to re-publish, C. § 6, SS9; ownership and assignment, C. § 7, 560; civil remedies, C. §§8-io, 561-62; of- fences and penal ties, C.§§ 11-12,562; sum- mary remedies, C. §§ 13-15', 562-65 ; impor- tation, C. §§16-21,' 565-67; registration, C. §§22-27,567-69; special provisions, C. §§ 28-32, 569-70; existing works, C. §§ 33- 157; imperial reciprocity, C. § 34, 5731 in- ternational, C. §§ 35-36, 573-74; evidence, C. §§37-38, 574; fees, C. § 39, 574; clerical errors, C. § 40, 575; rules and regulations, C. §§ 41-46, 575-76; schedules, 577-79- Canada copr. [imperial] act (1875), 30, 382, 384- Canada Gazelle, 388, C- § 43, 576. Canal Zone, 39, 423. See also Panama. Canned music. See Mechanical reproduc- tion. Cantatas, 60, 164, 166; § 28, 478. Cape Colony, 38r, 396. See also South African Union. Card copr., 70; R. § 4, 496. Carey, H: C, 3, 344, 347, 454. Carlisle, Senator, 363. Carlyle, T: 351, 457. Carmen case (1905), 120, 188. Carnegie, Andrew, 331. Cartographical works. See Maps. Cary v. Longman (1801), 76. Castellazzo, 14. Casts. See Reproduction, Sculpture. Catalogue of British Museum, 310; of U. S. copr. entries, 299-301, 304-06; § 56, 485; § 57, 485; § 60, 486; cards, 301. Catalogues, 69, 71, 73, 234, 237; R. § 4, § S, 496. Cate V. Devon (1889), 254. Celtes, II. Censorship, 10, 15, 199. Central Amer., 421-23. Certificates, 10, 16, 72, 119, 126, 136, 140, 168, 230, 303, 307, 309, 319, 33s; § 10, 469; § 55, 484; § 61, 487; R. § 3, 495; C. § 7 (5), 561; Au. § 69, § 70, 599; L 617; P. 644. 684 INDEX Ceylon, 395. Chace, Senator, bills (1886-88), 358, 360, 361- Champney v. Haag (1903), 243, 274. Channel Islands, 381; E. § 37, 544. Chappell I). Boosey (1882), 183, 184. Characters in plays, 170, 175, 192. Charitable purpose. See Performance. Charles 11, 22. Charles V, 10. Charles IX., 18. Charts. See Maps. Chatterbox cases, 84, 261. Chatterton v. Cave (1876), 174. Check books, noncopr., 71; R. § S> 49^. Chicago Dollar Directory case (1895), 257. Chicago Tribune v. 111. Pr. & Pub. Co. {1909), 103. Child V. N. Y. Times Co. (igoi), 272. Children. See Heirs. Chile, 112, 323, 331, 332, 34S, 427, 489, 636, 643, 652- China, 112, 20X, 323, 340, 417. Chippewa Indians, 41. Choregraphic works, 162, 177, 198, 320, 326, 336; R. § 8, 497; E. § 3S, 542; C. § 2, SSS; I. 603, 604; P. 634, 649. Chrestomathies, 334, 337; I. 613; P. 639, 651. See also Collections. Christie, W. D., 457. Chromos. See Lithographs. Chronology, copyrightable, 69. Church control, 17; texts, 12. Cicero, 8. Cinematograph. See Moving pictures. Circulars, 71; R- § 4, 49^; C. § 14, 564- Circulars, Copyright Office, 456. Circus posters, 237, 244. Circus tricks noncopr., 163; R. § 8, 497. Citations. See Law reports. Citizens, intending, 109. See also Foreign, Residence. Citizenship defined, R. § 30, 503. City Club conferences, 367. Civil remedies. See Remedies. Claim of copr. See Application, Notice. Claimant of copr., 95, 96, 136, 137, 304; § 55, 484; R. § 29, § 30, 503. Clarendon treaty, 349, 354. Clark v. Bishop (1872), 176. Clarke v. Price (1819), 441. Classic times, 8. Classification of copr., 63, 64, 136, 168; § 5, 467. Clay, H: 341; bills and rpt. (1837-42), 344, 346. Clayton v. Stone (1828), 69. Cleland v. Thayer (1903), 241. Clemens, S. L., 98, 99, 339, 447- Clemens v. Belford (1883), 98. Cleveland, President, 338, 360. Clifford, J., 254. Clinical Obstetrics, in re (1908), 447. Cobbett V. Woodward (1872), 73. Code of 1909, 39, 372; text of, 465-88. Codeca, 14. Codes, telegraphic, 70. Cohen, B. A., 458. Coin-operated machines, 204; §1 (e), 466. Collaboration. See Joint author. Collections, 69, 81, 377, 406, 409, 431, 434; E. § 2, 519. See also Chrestomathies. Collective work. See Composite works. Colles & Hardy, 171, 459. Collins, P. A., bill (1883), 356. Colombia, 124, 152, 198, 323, 332, 429, 643, 652. Colonial copr. act, 29, 293, 379, 380, 381, '382. Combinations, copr. in, 69, 73, 82, 224; R. § 16, 499; C. § 2, SSS- Commission, Royal Copr., 30, 122, 183, 459. Committee of experts, 404. See also Con- gressional. Common law, 2, 4, s, 6, 7, 9, 23, 24, 26, 34, 40, 42, 43. 44. 46, 59. 61, 62, 86, 90, 91, 92, 95, 119, 178, 182, 186, 187, 192, 225, 261, 277, 379, 387, 392. 42s; § 2, 467; E. § 31, 541; C. § 42, 576, 577; Au. § 7, 583. Competition. See Unfair competition. Compilations, 63, 64, 69, 71, 81, 255, 256, 257. 326, 428; § s(a), 467; § 6, 468; R. § 4. 496; I. 604. Component parts, 64, 74, 76; § 3, 467. Composer. See Author, Music. Composite works, 63, 64, 76, 81, 100, 104, 106, 113-116, 120, 132, 403; § 3, 467; § 5 (a), 467; § 23, 474; § 24. 47S; R- § 47, S°9; INDEX 685 E. § 5, 522; § 24, S34; I 3S. 542; C. § 30, 569; Au. § 20, 587; importation, 286. See also Cyclopaedic works. Compulsory license. See License. Condensations, 261, 273. 5ee also Abridg- ment. Conferences, copr., 32, 316, 367, 430, 460. See also Congressional Committees, Inter, copr. Congo Free State, 419. Congress, Constitutional authorization, 7, 3S- Congressional Committees, 117, 119, 242; foreign relations, 347; judiciary, 337, 361, 362; library, 348, 350, 352; patents, 202, 204, 29s, 356, 360, 361, 362, 367, 369, 371; whole, 347, 350, 371. Congressional hearings, 202, 204, 214, 296, 3S2, 359. 3^9, 448. Connecticut copr. legislation, 35, 40, 194. Consent of author or proprietor, 5, 15, 22, 45, 52, 59. 65, 88, 91, 93, 100, 120, 127, 198. 279, 386. 432; § 2, 467; § 6, 468; § II (2), 525; § 62, 488; E. § 3S (2), 543, ssi; C. § 2 (2), SS7; § 13, 563; Au. § 29, s88. Consolidated Gas Co. case (1909), 207. Constitutional provision, 7, 34, 35, 51, 66, 67, 114, 180, 218. Constitutionality, music royalty, 52, 207. Construction. 5ee Architecture, works of. Contract, 10, 48, 49, S3. 54, 57, 60, 78, 87, 90, 97, 98, loi, 103, 106, 117, 118, 186, 187, 188, 232, 234, 409, 430-32; E. § s, 521; standard, 438. Contracts, forms of, noncopr., 71; R. § s, 496. Contributions. See Periodical contribution. Control of sale, 54, 60. Conventions. See Treaties, International, Pan Amer. Union, Berne, Paris, Berlin, Montevideo, Mexico City, Rio de Janeiro, Buenos Aires. Cooper, J. F., 347. Copies. 5ee Authorized copies. Copinger, W. A., 6, 80, 454, 458. "Copy," I. Copy, right to, I, 10, 42, 4S, S3, 163, 392; § I (a), 46s; Au, § 13, 584. Copy of a copy, 243. Copyright, definition of, i, 2, 43-62, 333, 376, 387, 392. 419; E. § I (2), S18, 545; C. § 2, ss6, 577; Au. § 13, 584; P. 633, 637. 649- Copyright deposits, 54, 55, 136, 298, 299, 30s, 306, 309; § 59, 60, 486; R. § 49, 509; C. § 27, 568. See also Deposit. Copyright Office, 130, 297-310; § 47-61, 483-87; in British Empire, 310, 373-97! C. § 2, SS5; § 22, 567; § 27, 568; Au. § 9- II, 562-83; in other countries, 310, 398- 429; publications, 40, 72, 195, 300, 304, 366, 367, 372, 455. See also Regulations, Seal. Copyright records, 95, 298, 302, 305, 309; § 47, 483; § 54, 484; § 58, 486; R. § 49, 509; C. § 22, 567; Au. § 64-76, 599-601. 5ee also Registers. Corporate work, 102, 104, 106, 115, 122, 398-429; § 23, 474; E. § 19, 529; § 21, 533; c. § 31. 570. Corporation, 102, 129, 157, 273; § 23, 474; R. I 24, soi; § 33, S05; E. § 19, 529; § 21, 533; C. § 31, 570. Corson, Levi, H. 38. Cost tables, 70; R. § 4, 496. Costa Rica, 112, 152, 316, 317, 332, 334, 336, 340, 420, 421, 423, 489, 643, 652. Costs, legal, 276; § 40, 482; E. § 6 (2), 523; C. § 8, 561; Au. § 78, 602. Couhin, Claude, 460. Country of origin, 152, 313, 318, 319, 327, 328, 329, 333; I. 606, 607, 609, 610, 612, 618, 619; P. 638, 643, 644, 650. See also First publication. Coupons, noncopr., 70, 71; R. § 5, 496. Courier Lith. Co. case, 102. Court jurisdiction, 36, 260, 269, 270, 271, 319; § 26, 477; § 34, § 35, 481; E. § 12, 525. 549, 552, 553; C. § 14, 563; § IS, 564; Au. § 59-60, 597; § 79, 602; I. 609, 618; P. 635, 640, 652; consular, 62, 201, 417, 418. Courtesy of the trade, 8, 10, 364. Cox V. Cox (1853), 443. Cox, S. S. bill (1871), 350. Crampton, John F., 347. Crasso, 14. Credit-rating books, 53, 70. 686 INDEX Criticism, 259, 264, 334, 376; E. § 2 (1), 518; C. § 4, SS8; Au. § 28, s88; P. 640, 651. Crookes v. Petter (i860), 445. Crown, copr., 21, 49, 123, 377; E. § 18, 529. Cuba, 112, 124, 334, 33S, 340, 410, 423, 642, 652. Currier, Franic D., bills (1908-9), 367, 369, 370, 371- Curtis, G: Ticknor, 80, 455. Curtis, G: W: 348, 454. Custom of the trade, 236, 259, 364. Customs, American, 291; duties, 288; regu- lations, 279, 282, 513; British, 29, 292; Consolidation Act (1876), 30, 33, 293; E. § 14 (6)> 526; duties, 384, 390; C. § 16, 565; notification, 293-295, 310, 378, 392, 395, 396; E. § 14, 525; C. § 20, s66; Au. § 61, 598. See also Importation. Cuts. See Engravings. Cyclopaedic works, 63, 71, 81, 99, 115, 122, 188, 287, 460; § s (a), 467; § 23,474; R. §4, 496; E. § IS, 527; § 35, 542; C. § 22, 567; § 30, s6q; Au. § 20, 586. See also Compos- ite works, Encyclopsedia. Cylinders. See Mechanical instruments. Cyprus, 37S, 397; E. § 28, 538. Daldy, F. R., 356. Daly V. Brady (1899), 191. Daly ». Palmer (1868), 175. Daly V. Walrath (1899), 181. Daly V. Webster (1892), 191, 192. Dam II. Kirke La Shelle Co. (1908, 1910), loi, 171. Damages, 26, 57, 195, 200, 206, 245, 265, 272,274,378,389,404; §2S (b),476; §2S (e), 477; E. § 6, 522; § 8, 523; C. § 8, 361; Au. § 46, 591. See also Penalties. Dances. See Choregraphic works. Danish West Indies. See Denmark. Date. See Notice, Publication. Daude, 461. Davis, J. Howlett, 220. Davis II. Benjamin (1906), 73. Day, Justice, 56. De Jonge v. Breuker & Kessler (1910), 237, 242. Death. See Heirs, Joint authorship, Term. Deception. See Fraud, Intent. Decorative borders, 224; R. § 16, 499. Dedication, multiplying copies not, 4. See also Public domain, Publication. Definitions in laws, § 62, 488; E. § 35, 542; C. § 2, SSS; Au. § 4, 580. See also specific subjects. Deliver, right to, 42, 45, 59, 61, 91, 376, 393; § I (c), 46s; E. § 1, S18; C. § 2, ss6; Au. § IS, 584. See also Oral work. Dehvery. See Deposit, Forfeiture, Oral work, Publication. Denmark, in, 124, 197, 200, 248, 321, 323, 330, 340, 402, 407. Deposit copies, 142, 166, 226, 305, 306; § 11, § 12, 470; § 59, § 60, 486; R. § 3, 49s; § 18. 499; § 22, 500; failure to, 36, 121, 142, 144, 150, 152, 199, 396, 407, 429; § 13, 470; history, 15-18, 22, 24, 27, 28, 36, 37; in British Empire, 150, 189, 373, 378, 383- 97; E. § IS, 527; § 29, 539; C. § 26, § 27, 568; Au. § 7s, 601; in mails, 36, 145; R. § 39, 507; in other countries, 151, 399- ' 429;insufficient,i45;R. §18,500; interim, 146, 366; § 21, 474; R. § 38, 507; Pan Amer. 333, P. 638, 643; periodical contri- bution, 138, 143; § 12, 470; precedent to suit, 24, 399, 416; Au. § 74, 600; receipts for, 136, 145, 303; § 14, 471; § SS, 484; R. § 39, S°7; unpublished works, 86, 143, 144, 166, 225, 226; § II, § 12, 470; R. § 18, 499; § 19, 500. See also Copyright deposits. Library. Descriptions as deposit, 70, 114, 162, 236, 238, 388, 390, 391; R. § 4, 496; § 8, 497; C. § 26, 568. Designs, 27, 29, 33, 36, 42, 46, 63, 70, 76, 93, 127, 223-26, 229, 242,248, 376,386; §1 (b),465; §5 (g), 468; § 18, 472; R. § 14, 498; § 20, soo; E. § 22, 534; C. § 32, 570; I. 603; P. 637; acts, 27, 29, 189. Destruction of infringing copies, 11, 266, 268, 277, 279, 282, 283; § 25 (d), 476; § 32, 480; E. § 9, 524; § II, 525, 550; C. § 10, 562; § 13, 563; § 14 (3), 564; § 21, 566; Au. § 52, 593; § S6, 596; accidental, 432, 438, 444, 449- Diagrams, 69, 223; R. § n, 498; Au. § 4, S8i- Dialects, translation into other, 42, 58, 407, 409; § I (b), 465. INDEX 687 Dialogue in drama, 171, 173, 175, 176, 191. Diaries, blank, noncopr., 71; R. § 5, 496. Dickens, C: 346, 348. Dicks V. Yates (1881), 83. Dictionaries, 69; E. § 35, 542; C. § 30, 569. Dielman v. White (1900), 234. Digests. See Law digests. Directions, noncopr., 71, 208; R. § 5, 496. Directories, 63, 69, 71, 81, 255, 257, 274, 27s, § s (a), 467; R. § 4, 496. Disks. See Mechanical instruments. Distribution. See Publication. Dean V. Amer. Book Co. (1901), 263. Documents, legal, copr., 72; public, noncopr. 72; § 7, 468. See also Government pub- lications. Dodd V. Smith (1891), 263. Dodge V. Allied Arts Co. (1903), 245. Dolls, noncopr., 72, 223; R. § iz, 498. Domicile. See Residence. Dominican Republic, 62, 124, 332, 334, 424, 643. 652- Donaldson v. Becket (1774), 7, 25, 41. Dorsheimer, Wm., bill (1884), 356, 357. Dramatic work, 162-201, 375, 387; E. § i, 517; C. § 3, 5S7; classification and defini- tion, 63, 162, 175,318, 326, 332, 393; Is (d), 468; R. § 8, 497; E. § 35, 542; C. § 2, S5S; Au. § 4, 580; I. 603; P. 633, 637, 649; acts, 27, 30, 37, 39, 182, 398; excepted from manufacturing clause, 70, 155, 167; R. § 4, 496; formalities, 86, 119, 127, 139, 144, 150, 166, 168, 189, 393, 396, 406; § II, 470; § 18, 472; R. § 18, 499; C. § 26, 568; Au. § 13, § 14, 584, § 32. 588; infringe- ment, 19s, 266, 267, 394; § 25 (b), 476; E. § 2 (3) 520; Au.§ 46, 591; § SI. S93; manu- facture, 168; performance, 59, 165, 183, 18s, 319, 322, 327, 394; R- § 23, s°°; E. § I (3), S18, § 2 (3), 520; I. 608; prior publication, 183, 185; special rights, 42, 43, 4S, 61, 63, 162, 163, 169, 197, 322, 376; § I (b), 46s; E. § I, S17, S18; C. § 2, ss6; Au. § 13, 14, 584; I- 613, 614; unpublished, 119, 186. See also License, Mechanical re- production, Performance. Dramatico-musical works, 70, iss,'i39, 162- 201, 319, 322, 326. 327; § S (d), 468; R. § 8, § 9, 497; I- 60s, 604. 608, 613; P. 633> 649; infringement, 195, 266, 267, 476; § 25 (b), 476; § 28. See also Drama- tic, Mechanical reproduction. Musical. Dramatize, right to, 42, 45, 47, 58, 61, 63, 163, 169, 170-72:322,376,392; 398-429, § I (b), 46s; E. § I, S18; C. § 2, ss6; Au. § i3> 584; I- 614. Dramatization, 64, 170, 172, 174, 176, 328, 398-429, 431; § I (b), 46s; § 6, 468; C. § 2, 5S6; I- 614- Drawings, 8, 29, 37, 64, 223, 224, 229, 242, 246, 247, 248, 250, 326, 332, 376, 388; § S (i), 468; § 18, 472; R. § II, § 12, § 14, 498; E. § 2, S18, § 35, 542; C. § 2, 555; § 4, 558; Au. § 4, 580; I. 603; P. 634, 637, 649. See also Artistic work. Droit d'Autetir, 330, 462. Drone, Eaton S., 41, 69, 76, 77, 80, 95, 455. Drummond v. Altemus (1894), 264. Drury 11. Ewing (1862), 69. Dublin University. See University deposit. Duck V. Bates (1884), 186. Duck ». Mayen (1892), 190. Dumb show, E. § 35 (i), 542. Duration of copr., 114-124. 5eeTerm. Durer, Albert, 11, 12. Dutch colonies, 401. See also Holland. Duties. See Customs. Dutton V. Cupples & Leon (1907), 263. Dwight V. Appleton (1840), 133. Easton, J. M., 458. Scrivains, 10. Ecuador, 94, 323, 332, 428, 643, 652. Eddy, Mrs. Mary Baker G., 452. Edinburgh University. See University de- posit. Edison, 216, 221. Edison v. Lubin (1903), 242. Edition partagSe, 46. Editions, new, 65, 75, 83, 134, 139, 170, 312, 445; § 6, 468; E. § 15 (7), 527; Au. § 27, 587; publishing, 431, 445, 446. Editor. See Author, Proprietor. Edmunds & Bentwich, 459. Education, works for, 12, 60, 164, 264, 275, 279, 281, 290, 334, 337, 377; § 28, § 31, 478; E. § 2, 518; L 613; P. 639, 651. Eggleston, E:3S6. 688 INDEX Egypt, 62, 124, 201, 418. Elderkin, J., 352. Eldon, Ld. Chancellor, 256. Election reports, 89. Electrotype, 235. Eliot V. Jones (rgio), 85. Ellis V. Hurst (1910), 98. Ellis V. Marshall (1895), 239. Ellis V. Ogden (1894), 239. Embroideries noncopr., 72, 223; R. § 12,498. Employer, 78, 80, 95, 97, 99, 104, in, 115, 137, 188, 193, 238, 271, 378, 393, 404, 443; § 23. 474; § 62, 488; R. § 30, S03; E. § S, 521; C. § 4 (2), ssr, § 7, 560; § 13. 562; Au. § 21, 587; §§ 38-40, 591. See also Author, Proprietor. Encyclopedia Britannica, 454. See also Cyclopaedic works. Encyclopaedia Britannica Co. ». Tribune Assoc. (1904), 261; other cases, 261. Engineering work, designs for, 224; R. § 14, 498. England. See British. English, W. E., bill (1885), 358. Engraver as author, 239; Au. § 40, SQO. See also Author. Engravings, n, 14, 36, 67, 73, 76, 113, 150, 223, 234, 240, 244, 247, 248, 250, 288, 31S, 326, 332, 376; R. § 13. 498; E. § I (3), § 2, S18; § s, S2i; C. § 2, 55S, § 3 (2), SS7; § 4. SS8; § 7, S6o; § 26, s68; Au. § 4, s8o; I. 603; P. 634, 637, 649; copr. acts, 27, 28, 36, 238, 240, 246. See also Prints; Photo- engravings. Enoch ». SocUte des phonographes et gtamo- phones (1903), 212. Entertainment. See Dramatic work. Entry. See Application, Registration. Epitome. See Abridgment. Equity, principles of, 44, 86, 100, 178, 253, 258; § 2, 467. See also Common law. Errors in affidavit, 157; R. § 33, 505; in copr. notice, 128; common proof by, see In- fringement. Esperson, Pietro, 461. Estes V. Williams (1884), 83. Estes B. Worthington (1887), 84, 261. Etchings. See Engravings. Evarts, W. M., 50, 353. Everett, E: 347. Everson v. Young (1889), 72, 96. Evidence, certified, C. §36, § 37, 574; prima facie, 83, 100, 137, ISO, 300, 304, 305, 378; § SS, 484; § S<5, 48s; E. § 6, 523; § 17, 529; Au. § 69, 599. See also Certificate, Name. Exchange of copr. deposits, 298, 305; § S9t 486. Exchange Telegraph v. Gregory (189s), 89. Execution, copr. not subject to, 47. See also Bankruptcy. Executor of author, 23, 95, 102, 104, iij, 116; § 8, 469; § 23, 474; § 24, 475; R. § 2, 49S; § 46, 509; C. § 2, SSS- See also Heirs. Exhibition, 42, 45, 222, 224, 231, 235, 238, 239, 250, 322, 327, 376, 404; E. § I (3), 518; § II, 524; C. § 2, ss6; § 4, SS9; § n, 524; I. 608, 618; P. 640, 652. See also Artistic work. Existing copr., 116, 319, 320, 329, 377; § 24, 47S; E. § 3, 520; § 19 (7), S32, (8), 533; § 29, S39, S4S; C. § 33, S7I, 577; I. 619, 620. See also Extension, Rights, Schedules. Expositions, exhibits at, 29, 38. Extension of copr., 116, 117, 140, 141; § 23, 47S; § 24, 47S; § 61, 487; R. § 46-48, S09. See also Renewal, Term. Extracts, use of, 198, 211, 264, 319, 328, 334, 337, 377, 404, 438; E. § 2, 519; I. 613; P. 639, 651. See also Quotation. Extraterritorial notice, 133. Es^re V. Walker (1735), 24. Fabrics, woven, noncopr., 72, 223; R. § 12, 498. Failure to deposit, translate, etc. See De- posit, Translate, etc. "Fair use," 91, 173, 174, 190, 251-64; Au. § 28, 587; P. 640, 651. See also Infringe- ment, Quotation. Falk V. Brett (1891), 241. Falk V. Curtis Pub. Co. (1900), 273. Falk V. Donaldson Lith.Co. (1893), 244. Falk V. Gast (1891, '93), 235, 236, 241. Falk V. Heffron (1893), 271. False affidavit, entry, notice. See Affidavit, etc. Farce. See Dramatic work. Farrer license plan, 51, 449. INDEX 689 Fees, 141, 147, 207, 241, 299, 302, 306, 309, 389, 391. 403; § 49. 483; § 61, 487; R- § 3. 496; § 38, § 40, 507; § 42, § 43. S08; § 48, S09; § 49. Sio; C. § 7, s6i; § 22, 567; § 39, S74; Au. § 63, 598; § 70, S99; § 71. 600; P. 64s. Felice, Fra, of Prato, 17. Fell, Bishop, 19. Fiji Islands, 39s. Fillmore, President, 347. Film. See Moving pictures. Fine arts copr. act, 29, 33, 240, 246, 378, 548. Fines. See Penalties. Finland, 200, 409. Finnian v. Columba (567), 9. First publication, 16, 108, 109, 120, 127, ISO. 151. 182, 184, 185, 199, 200, 321, 327, 373. 37S. 388, 393. 4i6, 418; R. § 2, 495; E. § I, S17; § 3, S2o; § 17, 529; § 23, 534; § 26 (3), 537; § 27, S38; § 29, 539; § 35 (3), 543; C. § s. SS9; Au. § s, 581; §§ 13-1S. 584; I. 6og, 610; P. 638, 650. See also Simultaneous publication. Fishbum v. HoUingshead (1891), 313. Fishel V. Lueckel (1892), 244. Fisher Act (1900), 295, 385. Florence, 17. "Fly by night" dramatic companies, 194, 269. Folders, 71; R. § 4, 492. Folsom V. Marsh (1841), 92, 252. Foreign assignment, 105; § 43, 482; R.' § 41, S08. Foreign author, 19, 37, 79, 107-12, 138, 139, 373. 37S. 387. 388, 389, 390, 404; § 8, 469; R. § 2, 49S; § 29, S02; § 30, S03; § 3S, S06; E. § 29, 539; C. § 3S, 573; Au. § 62, § 63. 598; I- 609, 620; P. 638,650. See also Residence. Foreign countries copr., 398-429; scope, 62; subject-matter, 94; ownership, 113; term, 124; formalities, 151, 313; manu- facturing provisions, 160; dramatic and musical works, 178, 197, 199; mechanical reproduction, 210-14; artistic work, 248; importation, 295; copr. office, 310; inter- national conventions, iii, 311-40, 489. See also International, Pan Amer., names of countries and conspectus preceding contents. Foreign laws, list of, 366, 436; reprints act, 27, 29, 294; subjects (artistic), 154, 156; 228; § IS, 471; R- § 27, 502. Foreign texts, exc. from manuf. clause, 156, 284; § 15, 471- Foreign works (in U. S.), 29, 30, 79, 133, 138. 139. 146-50, 153. 154, 156, 202, 228, 278-96; § I (e), 46s; § IS, 471; § 31 (c), 479. 513-16; R. § 28, S02; § 38, S07. See also Interim, Residence. Forfeiture of copr., 15, 121, 131, 132, 144, 150. 152. 158, 196. 23s, 24s; § 13, 470; § 17, 472; § 32, 480. See also Seizure. Formalities, 35.39. 125-52, 166-68, 178, 189, 236. 313. 5". 512; §§ 9-22, 469-474; R. §§ 17-48, 499-509; British, 29, 150, 373- 397; E. § IS. 527; § 29 (i). S39; C. § 3, ss7; §§22-27, 567-569; § 35. 573; Au. §§ 64- 76. 599-601; in other countries, 16, 18, 21, 146,^150-52, 199, 398-429; I. 606, 611, 613, 617; P. 649. See specifically Affida- vit, Application, Assignment, Certificate, Deposit, Fees, Notice, Publication, Regis- tration, etc.; also Artistic work, Book, Dramatic work. Musical works, etc. Forms, C. § 41, S75. See also Application. Forms copr., 69, 70; R. § 4, 496; noncopr. 71, 72; R. § s, 496. Formulae, noncopr., 71; R. § 5, 496. Fragments not depositable, 143. See also Extracts, Parts, Quotation. France, 62, iii, 118, 124, isi, 248, 295, 310, 316-23, 330, 331, 340, 398, 460, 489; history, 10, 17, 114, 311, 312, 398; me- chanical reproduction, 212. Francis I, 18. Frankfort, 11, 12, 13. Franking labels, 14s; R. § 39, 507. Franklin Square Library, 262. Fraser s. Edwardes (1905), 176. Eraser v. Yack (1902), no. Fraud, 11, 84, 8s, 87, 100, 135, 260, 422. See also Affidavit, Imitation, Intent, Notice, etc. Fraudulent works. See Seizure. Frederick III, 11. Free transmission. See Mails. 690 INDEX Freeman v. Trade Register (1909), 131. Frelinghuysen, F. T., 357. French colonies. See France. French ». Day, Gregory, et ai. (1893), 193. French v. Ereling (1894), 181. Frohman v. Ferris (1909), 181. Frohman v. Weber (1903), 192. Froude, Jas. A., 351. Frye, Senator, 363. Fuller V. Bemis (1892), 177. Fuller V. Blackpool Winter Gardens Co. (189s), 176. Fust, 10. Gabriel v. McCabe (1896), 82, 256. Gaius, decision of, 8. Gale V. Leckie (1817), 441. Gambia, 397. Games, noncopr., 71, 72, 223, 224; R. § Si 496; § 12, 498; § 16, 499. Gannet v. Rupert (1904), 84, 274. Garfield, President, 255, 336. Garments, noncopr., 72, 223; R. § 12, 498. Garofalo y Morales, D. F. G., 462. Gazetteers, 63, 69, 71, 81; § 5 (a), 467; R. § 4, 496. Geographical work. See Maps. Georgia copr. legislation, 35. Georgian period, 27. Germany, 112, 124, 151, 161, 198, 199, 295, 296, 316-20, 322, 323, 330, 340, 368, 402, 460, 489; history, 10, 311, 312, 402; me- chanical reproduction, 210, 340, 490; pub- lishing law, 430. Gibraltar, 397. Gibson v. Carruthers (1841), 452. Gilbert v. Star (1894), 186. Gilbert v. Workman (1910), 100. Gilder, R: W., 336. Gilmore 11. Anderson (1889), 255. Giustiniani, 14. Glaser v. St. Elmo Co. (1909), 192. Glassware noncorp., 72, 223; R. § 12, 498. Globe Newspaper Co. v. Walker (1908), 272, Globes, 333; P. 637, 649. Godson, R: 457. Gold Coast, 397. Gottsberger v. Estes (1888), 136. Gounod's "Redemption" case, 187. Government publications, 12, 37, 63, 98, 123, 377, 398, 403, 407, 410, 412, 420; § 7, 468; E. § 18, 529. Governmental libraries, transfer to, 306; § 59, 486. See also Library. Gramophone. See Mechanical instruments. Grant, 2, lo, 11, 13, 27, 38, 46, 48, 49, 189, 190, 204, 236, 377, 437; § 42, 482; E. § s, 521; § 24, S3S; C. § 7, 560. See also As- signment, License. Granville, Lord, 351, 355. Gratuitous circulation S3. 404. See also Performance. Graves v. Gorrie (1903), 246. Great Britain. See British. Greece, 124, 152, 323, 414. Green v. Irish Independent (1899), 236, 253. Green v. Luby (1909), 136. Griffith V. Tower (1896), 4S1. Guatemala, 112, 124, 323, 332, 334, 336, 340, 421, 643, 652. Guernsey. See Channel Islands. Guggenheim v. Leng (1896), 236. Guide books copr., 69. Guilds, 9, IS, 21. Gyles V. Wilcox (1740). See Hale case, 80. Haiti, 124, 316, 317, 318, 320, 322, 330, 332, 424, 643, 652. Hale's "Pleas of the crown" case, 80. Hale, E: Everett, 41, 118. Half-tones, 224; R. § is, 498. Hamlin, Arthur S., 4SS. Hanfstaengl 11. Amer. Tobacco Co. (1894), 313- Hanfstaengl v. Baines (1894), 242. Hanfstaengl v. Holloway (1893), 313. Hansard's Parliamentary debates, 456. Hardwicke, Ld., 80. Harmony. See Musical work. Harper v. Donohue (1905), 47, 133. Harper v. Franklin Sq. Lib. Co. (1887), 262. Harper v. Ganthony (189s), 82, 171. Harper v. Kalem Co. (1908, '09, '11), 77) 176, 237, 242. Harper ». Ranous (189s), 170. Harper v. Shoppell (1886), 23s. Harper proposals, 349, 352, 353, 3SS. 357- Harrison, President, 361, 364. ^ INDEX 691 Hartford Printing Co. v. Hartford Dir. Co. (1906), 275. Havana. See Bureaus, Pan Amer. Hawaii, 38, 39, 108, 270; § 34, 481. Hawkers, protection against, E. 550, SS^- Hawkesworth's "Voyages" case, 81. Hawley, Senator, bill (1885), 358, 361. Hazard, Egbert, 348. Hearings. See Congressional hearings. Hegeman v. Springer (1901), 274. Hein v. Harris (1910), 170. Heinemann v. Smart Set Pub. Co. (1909), 437- Heirs, 11, 14, 27, 36, 46, 49, 102, 104, 113, 114, IIS, 116, 123. 124, 378, 402, 410, 422, 429, 433, 452; § 23, 474; § 24, 475 ; R- § 46, S09; E. § s (2), S2i; C. § 2, sss; § 25, 568; Au. § 4, 580. See also Administrator, Executor, Renewal, Term. Helmuth, W: Tod, private copr. grant, 38. Henderson v. Tompkins (1894), 177. Henry H, IH, 18. Henry VIH, 19, 20, 21. Hemdon, private copr. grant, 38. Heme v. Liebler (1902), 187. Hervieu v. Ogilvie (1909), 155, 168. Hills V. Hoover (1905), 128. Hire, work for. See Employer. History of copr., 1-41, 311-429, 4S3-62; America, 35-41, 341-72; British, 19-34, 373-97; early, 8-23; in other countries, 398-429; international, 311-429; litera- ture, 453-62. Hoar, Senator, 361. Hogarth, 27. Hole V. Bradbury (1879), 445. Holland, 17, 112, 124, 152, 160, 200, 316, 317, 323, 401- Holloway ji. Bradley (1886), 100. Hohnes v. Hurst (1899), 67. Homer, 8. Honduras, 62, 112, 124, 317, 332, 334, 340, 421, 643, 652. Hong Kong, 395. Horace, 8. Hotten, J: Camden, 457. Hotten V. Arthur (1863), 73. Howard, Bronson, 194. Howitt V. Hall (1862), 445. Hoyt ». Bates (1897), 268. Hroswitha, 11. Huard & Mack, 460. Huard, Gustave, 460. Hubbard, Gardiner G., 361. Hungary, 124, 198, 200, 405. Hunter v. Clifford (1909), 247. Ideas, copying of, 176, 187, 240, 257. Ignorance. See Infringement, Innocent. Illustrations, 64, 73, 77, 127, 131, 138, 140, . IS3. 154, 156. 223, 224, 22s, 228, 230, 23s, 236, 237, 248, 250, 402,403,439; § s (k), 468; § IS, 471; § 18, 472; R. § 16, 499; § 2S, Soi; § 27, 502; Au. § 4, s8o; I. 603. See also Artistic, Engravings, etc. Imitation, ii, 12, 30, 84, 190, 2S4, 260, 263, 264, 286, 376; E. § 2, S19; § 35 (i), 543- See also Adaptations, Infringement. Immoral and seditious works, 86; Au. § 6, 582; P. 635. Imperial Copr. Conference, 32, 460; juris- diction, 12. See also British. Impersonal works. See Corporate work, Government publications, etc. Importation, 278-96; foreign practice, 29s; foreign rebinding, 159, 287, S14; forfeiture 279, 282, 283; § 32, 480; Au. § 61, S97; I. 618; in British Empire, 24, 27, 31, 2g2-9S, 310, 378, 383-87, 389, 392, 395; E. § 2 (2), S2o; § 14, S2S; § 2S (2), S36; § 35, S43; C. § 2, 5s6; § 4, S59; § 13, 562; § 16-21, 565-67; § 35, 573; Au. § so, 592; § 61, 597; innocent, 286; library, 279, 281, 290, 293, 387; §31 (A), 479; C. § 17, 565; manu- facturing provisions, 156, 159, 283, 284; on annulment of copr., 121; periodicals, 88, 286; permitted exceptions, 156, 186, 229, 279, 281, 289, 290, 291; § 31, 478; post- cards, 229; prohibition of, 12, 13, 18, ig, 21, 31. 134, 135, 278-96, 389, 513; § 30, 31, 478; § 33, 480; E. § 14, S2s; C. § 21, 566; Au. § so, S92; § 61, S97; I. 616; regu- lations, 279, 282, 513; § 33, 480; re-im- portation, 229; retroactive effect, 283; return of copies, 279, 282, 514, 515; § 32, 480; tariff, 288, 291; translations, 80, 288; C. § 35, 573, Imprint date, 129; " Venetia" protected, 16. 692 INDEX Imprisonment. See Punishment. Incidents, combination of, 170, 178, 186, 191; E. §3S (i), 542. Incunabula, 10. Indecent matter. See Immoral works. Index expurgatorius, 17, 160. Index of registrations, 300, 304; § 561 48s; C. § 22, 567. India, 248, 321, 382, 395. Indians, American, 41. Indo-China. See France. Industrial art, works, 93, 223, 326, 386; E... § 12, 498; C. § 32, s7o; I. 605. See also Designs, Trade-mark. Infringement, S, 16, 18, 21, 22, 23, 251-64, 376, 380, 404; E. § 2, S18; § 3S, S43. 547, SSI. 553; C. § 2, ss6; § 4, § 5, SS8; § 3°. 369; Au. §4,581; § 28, 587; § 4S-6i, SQi- 98; I. 614; P. 634, 63s, 639, 651; piratical work, newspaper or periodical, C. § 14 (6), 564; artistic, 245, 266, 267,378; § 25, (b), 476; E. § 9, 523; Au. § 45, 591; dramatic, i72-74,'i9o-g2, 195, 241, 266,267; § 25 (b). 476; E. § 2, 520; C. § 4, S59\ Au. § 32, 588; § 4S, S9i; § Si> 595; indirect, 243, 254; innocent, 130, 378; § 20,473; E. § 2 (2), (3),S2o; §8,523; C. §4(3), S59; § 13, 562; Au. § so, 592; § SI, 593; musical, 192, 195, 206, 266, 267, 268; § 25 (b), 476, (e), 477; E. § 19 (2), 530. SSI-S4; Au. § 4S. S91; § SI. 593; oral work, 266, 267; § 25 (b), 476; E. § 20, 533; Au. § 45, 591; party liable, 193, 240, 253, 394; E. § 2 (3), 520; § 6 (3), 522; C. § 4, 559; Au. § SI, 593; previous to formalities, 143, 275; § 12, 470; R. § 3, 495 ; Au. § 74, 600; proof by common errors, 257; remedies and procedure, 195, 206, 245, 265-77, 404; §§ 2S-28, 47S-78; E. §§ 6-10, 522-24; §§ 11-13, 524-25, 548; C. §§ 8-is, 561-65; Au. §§ 4S-6I, S91-98; I. 618; separation of inf. parts, 256. See also Destruction, Importation, Intent, Knowledge, Remedies, Seizure, Suits; also Chronological table of cases. Inglis, Ld. President, 75. Inherent right, 4, 5. See also Common Law. Injunction, 11, 46, 130, 194, 195, 196, 206, 245, 266-68, 271; § 20, 473; § 25, (a), (e). 47S. 477; § 27, 477; § 36, § 37, 481; E. § 6, 512; § 9, 524; C. § 8, 561. Inkus, II. Innocence. See Infringement, Knowledge. Inspection of records, 305; § 58, 486. Instruments noncopr., 72, 223; R. § 12,498. See also Mechanical instruments. Insurance policy, copr., 72. Intent, in infringement, 60, 85, 135, 19S, 252, 260, 275, 276; § 28, § 29, 478. See also Fraud, Infringement, Knowledge. Interest tables copr., 70; R. § 4, 496. Interim copr., 38, 126, 135, 138, 139, 146, 1S4. iSS. 366; § 9. 469; § IS. 471; § 21, 22, 474; R. § 26, 501; § 28, 502; § 35, 506; § 38, 507. See also Temporary copr. International conventions, 311-40; Berne (1886), 318; Paris (1896), 321; Berlin (1908), 326; Montevideo, 331; Mexico City, 332; Rio de Janeiro, 334; Buenos Aires, 336; texts, 603-52; scope, 62; sub- ject-matter, 94; term, 118, 124, 188; for- malities, 152; dramatic and musical works, 197, 198, 201; mechanical reproduction, 209, 221; artistic work, 248; infringement, 255; importation, 296; reservations, 185, 323. 330, 37S, 381, 399. 408, 415, 416. See also names of cities. International copr., 17, 107, 341-72; § 8, 469; R. § 2, 495; E. § 23, 534; § 29, 539; § 30. S4o; C. § 35, 573; Au. § 62, § 63, 598; acts, 28, 29, 30, 31, 37, 109, 184, 246, 292, 311, 312, 313, 341-64, 373, 379, 381, 383. 386, 388; literature, 330, 454, 456, 461; proclamations, in, 202, 213, 214, 212, 339, 489; prophecy, 344; trade-mark, 84; translations, 79. See also Interim, In- ternational conventions, names of cities, names of countries. International Copr. Assoc, 348, 351. See also Amer. copr. leagues. International Copr. Union. See Internat. conventions. International lit. assocs., 356. International lit. and art. assoc. See Assoc. International literary congresses. 5ee Assoc. , also names of cities. Interpretation. See Definition. Interstate Commerce Commission, 207. INDEX 693 Inventors. 5ee Author. Ireland, E. § 12, 525, 549, 552; prints and engravings act, 28. See also British. Irving, Washington, 83, 347. Isaacs V. Daly (1874), 82, 84. Isle of Man, 294, 378, 380; E. § 14 (6), 526. Italy, 13, III, i24, 152, 199, 213,310,316-18, 320, 322, 323, 330, 331, 340, 377, 412, 4S0, 461, 489, 636. Ivison,H: 348. Jamaica, 391. Japan, 112, 124, 321, 323, 330, 340, 415, 417, 456. Jay, J: 347, 3SS- Jefferys v. Boosey (1834), 1, 4. 108, 373. Jekyll, Sir Joseph, 24. Jersey. See Channel Islands. Jewellers' Merc. Ag. ». Jewellers' W'kly Pub. Co. (1898), 53. Johnson, R. U., 360. Joint authors, loi, 113, 120, 122, 188, 189, 377, 387, 403; E. § 16, 528; § 17, 529; C. § 29. 569; Au. § 17, 585; § 19, 586. Jones, Judson, 38. Jones V. Amer. Law Book Co. (1905, '08), 100. Jude's " Liedertafel " case (1907), 447. Judicial Committee, 123, E. § 4, 521. Judiciary committee. See Congressional Committees. Jurisdiction. See Court. Justinian, Code of, 8. Kant, Immanuel, 461. Karno v. Pathg Freres (1908-9), 177. Keeler v. Standard Folding Bed Co. (1895), 54. Kelley, W:D., 350, 3S2. Kelly V. Byles (1879), 83. Kennedy, J: Louis, 361. Kent, Chancellor, 5. Kessler, 10. "Key of Heaven" importation, 159. Kindersley, Vice-Chancellor (1852), 75. Kipling V. Putnam (1903), 263. Kittredge, Senator, bills (1906-8), 367, 369, 370- Knowledge, 60, 19S, 196, 236, ^S^, 27S, 277, 286, 379, 389, 441; § 28, 478; E. §2(2), (3), 520; § 8, 523; § II, 524. See also Intent. Knox & Hind, 459. Koberger, 10. Kohler, Josef, 461. Korea, 112, 416. Labels, 37, 64, 69, 223, 233, 237, 309. Labor copr. rpt., 456. Laces noncopr., 72, 223; R. § 12, 498. Laches. See also Forfeiture, Notice, omis- sion. Lacombe, J., 177. Ladd II. Oxnard (1896), 53. Lamb, C: letters, 92. Lamb v. Evans (1892), 74. Landa v. Greenberg (1908), 99. Landscapes not map., 223; R. § 11, 498. See also Artistic work. Languages. See Translate, Translations. Larby v. Love (1910), 57- Larceny. See Infringement. Lathrop, G: P., 356. Latin Amer. ,419. See also Pan Amer. Union and names of countries. Law reports and digests, 40, 98, 257, 441, 460. See also Chronological table of cases. Lawfully obtained copies, 60; § 41, 482. Lawrence v. Dana (1869), 81, 134, 254. Lawrence & Bullen v. Aftalo (1903) 99. Laws. See Copr. Office publications, also British, U. S. and names of other coun- tries. Lea, H: C, 358. Leaflets copr., 70; R. § 4, 496. Lease, right to, 46, 48, 49, 53. Leases, 71; R. § s, 496. Lecture. See Oral work. Lectures copr. act (1835), 28. Lee V. Gibbings (1892), 274. Leech, J: illustrations by, 8, 98. Legal documents, 72. Legal representatives. See Administrators, Executor, Heirs, etc. Leipzig book-fair, 11, 13; tribunals, 211. Lend, right to, 46, 48, 49. Lennie u. Pillans (1843), 81. Leo X, 17. 694 INDEX Letter-file indexes, noncopr., 70. Letters, 4, 91, g4, 421. Letters of the King, 18. Letters, ornamental, noncopr., 224; R. § 16, 499- Letters patent, 10. Liability. See Infringement, Proprietor. Libel, 100, 275, 437. See also Reputation. Libelous. See Immoral works. Liberia, 62, 124, 318, 320, 323, 330, 419. Libraires, 10; juries, 10, 15, 17. Librarian of Congress, 37, 72, 96, 296, 297, 299, 302, 303. 30S> 306, 367; § 48, § 49, 483; § SI, 484, § 59, § 60, 486. Librarium, 8. Library compensation, E. § 34, 541; de- posits, 16, 18, 306; § S9. 486; C. § 27, 568; importation, 279, 281, 288, 290, 293, 386, 387; § 31 (d), 479; C. § 17, S6s; loans, 60, 164; § 2S, 478. See also Importation, Universities. Library of Congress, 36, 144, 289, 298, 305, 367, 369; § 13. 470; § S9. 486; of Parlia- ment, C. § 27, 568. Library Committee. See Congressional Committees. Librettos, 71, 121, 180, 181, 188, 393; R. § 4, 496; Au. § 4, 581. License, right to, 46, 48, 61, 113, 123, 190; 236; E. § s, S2i; Au. § 25, 587; § 43. S9I- License, 51, 61, 211, 377, 387, 422, 425, 45°, 451; E. § 4, 4Si; § 16, 528, § 29, 540; C. § 6, 559; § 7, 561; § 17, 565; § 19. 566; early printers', 11, 21; limitation of, 82, 190, 236, 253, 256; mechanical reproduction, 52, 202, 206, 207, 208, 268, 377, 450; § I (e), 465; § 25 (e), 477; R. §44, 45, 508; E. § 19, 529; sub-license, 187; registration, C. § 7 (3), 560; Au. § 66, 599. See also Assign- ment, Royalty. Licensing acts, 21, 22, 385. Lieber, Dr. Francis, 346, 454. "Liedertafel series" in re (1907), 447. Lien, printer's, 449. Life, case, 84. Limitation, 6, 14, 21, 44, 46, 48, 49, 53, 199, 23s, 236, 393; E. § 3, 520; § 4, 521; § 19 (7). 532. (8) 533; C. § 33, 571; L 615; actions, 122, 270, 272, 273, 378, 404; § 39, 481; § E. 10, 524; C. § 10, § 12, 562; Au. § 48, 592; § 59, 597; assignment, 6r, 82, "3, 377, 378; E. § 5, 521; § 24, 534; C. § 7, 560; § 33, 571; sale, 47, 54, 60. See also "Fair use," License, Price, Term. Lindemann, Otto, 460. Lisbon literary congress (1880), 314. Lists copr., 69, 70. Literary and general copr., 35-161; pro- perty, early, 8, 15, 18. Literary work, definitions, 70, 94, 198, 318, 326, 375, 387, 388; R. § 4, 496; E. § 35, 542; C. § 2, 55s; L 603; P. 633, 637, 642, 649. See also Book and specific references under Application, AflBdavit, Certificate, etc. Literature of copr., 453-462. Lithographs, 138, 139, 144, 153, 156, 228, 244, 247, 248, 250, 326; § 15, 471; § 16, 472;.R. § 27, 502; E. § 35, 542; C. § 2, sss; Au. § 4, 580; I. 603; P. 634. Little ir. Gould (1852), 98. Littleton s.'Ditson (1894), 167. Living pictures. See Tableaux; also Moving pictures. Logarithmic tables copr., 70; R. § 4, 496. London Gazette; E. § 24, 535; §^25, 536; § 32, 541; international exhibition, 29; Journal, 83; literacy congress (1879, 1890), 209, 314- Long Parliament, 21. Lords, House of, decision, 25, 26. Lorimer v. Boston Herald (1903), 264. Louis XII, XIV, 18. Louisiana copr. legislation, 39, 194; Purchase Exposition, 38. Low V. Routledge (1864), 12B. Lowe, Joseph, 454. Lowell, J. R., 355, 359, 454. Lowndes, J: James, 18, i9,{456. Lucas V. Moncrieff (1905), 443. Lucas V. Williams (1892), 243, 274. Luckombe, 251. Luther, 12. Luxemburg, 112, 198, 200, 214, 248, 321-23, 330, 340, 400, 490- Lyrical work, 393; Au. § 4, 581. See also Dramatico-musical work. INDEX 695 Macaulay, 28, 456. McCall, S. W., bill (1908), 156, 370. McDonald i;. Hearst (1899), 271. Macdonald v. National Review (1893), 442. MacGillivray, E. L., 181, 252, 458. Mackaye's "Hazel Kirke," 188. McKay Shoe Mfg. Co. license, 451. McKinley, W: 308, 362. Macmillan v. Dent (1906), 92. M'Vickar, Dr., 341. Macy cases, ss. Madison, President, 33, 35. Magazine. See Periodical. Mails, importation, 279, 282, SiS. § 33. 480; loss in, of deposit copies, 145; transmis- sion, 36, 37, 142, 14s, 515; § 14, 471; R. § 39. S07- Mallory v. Mackaye (1898), 188. Maloney v. Foote (1900), 274. Malta, 397. Mansell v. Valley Printing Co. (1908), 61. Manufacturing provisions, 39, 79, 88, 144, 148, 153-61, 228, 28s, 341-72; § 12, 470; § IS. 471; § 16, 472; R. § 27, S02; § 32- 35. S04-06; affidavit, 137, 139, 156, 304, S12; § 16, 472; § ss, 484; R- § 32-35, 504- 6; "boomerang" effect, 286; exceptions, 146, 153. 154, 155. 167, 228, 284, S13; § 15, 471; § 31. 478; R. § 27, § 28, S02; § 32, 504; § 35, S06; importation, 80, 147, IS9. 279. 280, 283, 287, 513; § 31, 478; in British Empire, 152, 160, 161, 168, 385, 387-93; E. § 25 (2), S37; C. § 3 (2), 5S7; Au. § 13, 584; § 3S, S90; in other countries, 14, 16, 17, 20, 62, IS2, 160, 397, 401, 417. See also Annulment. Manufacture, right to, 46, 48, 49. Manuscript, 4, g, 42, 45, 90, 91, 94, 95, 102, 106, 116, 163, 179, 181, 186, 199, 218, 299. 306, 332, 412, 432, 434. 451; § I (d), 465; § 60. 486; R. § 18, 499; E.§ 17, 529; P. 637. See also Unpublished work. Manx. See Isle of Man. Maple V. Junior Army & Navy Stores (1882), 73. Maps, S7, 63. 69. 70, 223, 239, 247, 248, 250, 2SS, 288, 326, 333; § 5 f- 468; § 18, 472; R. § 4. 496; § II, 498; § 25, soi; E. § IS (7), 527; C. § 2, SS5; § 3, 557; § 26, S68; Au. § 4, s8i; 1. 603; P. 634, 637, 649; application card, 140, 229; R. § 31, 504. Mark Twain. See Clemens, S. L. Marshall v. Bull (1901), 238. Martial, 8. Mary v. Hubert (1906), 382. Maryland copr. legislation, 35. Massachusetts copr. legislation, 35, 39, 194; "written ballot," 66. Massenet and Puccini v. Compagnie gSni- rale des phonographes, et al. (1904), 213. Masses, performance of, 60, 164; § 28, 478. Material object, separate right in, 8, 60, 92; 98, 222, 228, 231, 234, 247, 393, 396, 398; § 41, 482; Au. § 41, S90. Mathematical tables copr., 69, 70; R. § 4, 496. Matrices, 266, 268, 270; § 25 (d), 476; § 27, 477; E. § 35, 543; C. § 2, ss6. Matthews, Brander, 454. Maugham, Robert, 458. Mauritius, 395. Mawman v. Tegg (1826), 256. Maximilian I, 11. Maxwell v. Goodwin {1899), 187. Maxwell v. Hogg (1867), 75, 84, 85. Mead v. West Pub. Co. (1896), 257. Mechanical instruments, 42, 45, 53, 54, 163, 191, 202-221, 268, 376, 377, 387; § I (d), 465; § 25 (e), 477; E. § I (2), S18; § 19, 529; § 35. 543; C. § 2, ss6; § 31, 570, § 33, 571; I. 616. Mechanical reproduction, 43, 62, 164, 169, 202-21, 320, 328; § I (e), 465; § 2s(e),477; R. § 44; § 4S, 408; 1. 61S, 616; application form, 140, 207; arguments for control, 214; dramatic and dramatico-musical works, 166; hearings on, 202, 204, 214, 369, 370; in British Empire, 33, 61, 178, 208, 376, 377,387;E.§i,5i8;§ 19.529; §35.543; C. § 2, S5S; § 33, 571; Au. § 4. 580; in other countries, 112, 209, 212, 213, 214, 340, 400, 408, 490; notice of user, 203, 206, 207, 208, 307; § I (e),46s; § 23 (e),477; §61,487; R- § 44, § 45, 508; E. § 19, 530; reciprocity, H2, 202, 212, 340, '490; § I (e), 465; roy- alties, 202, 204, 206, 207, 211; § I (e), 465; § 25 (e),477; E. § 19, 530. Seealso License. 696 INDEX Mechanical stage devices, 162; R. § 8, 497. Melody, 43, 164, 169, 170, 198, 202, 393; § I (e), 465; Au. § 4, 581. See also Musical work. Memorandum books, noncopr., 71; R. § 5, 496. Memorial. See Petitions. Merit, literary or artistic, 14, 68, 69, 73, 175, 177, 229, 237, 240, 432. See also Origi- nality. Merriam cases, 134, 261. Messages. See Pigeons, Telegraph. Messages, Presidential, 361, 368. Methods noncopr., S4, 7o> 247, 376; E. § 35, 542; C. § 2, 5SS. Mexico, 112, 124, 198, 323, 332, 420, 643, 652. Mexico City conference, 331; convention, 112, 332, 419, 422; text of, 637-41. See also International, Pan-Amer. Union and names of countries. Michigan copr. legislation, 40, 194. Mifflin V. Button (1902), 102. Milan literary congress (1892), 209. Miles V. American News Co. (1898), 236. Mill, J: Stuart, 351. Millar v. Taylor (1769), 25. Milton, 22. Minnesota copr. legislation, 39, 194. Misleading use. See Fraud, Intent. Mitchell & Miller v. White & Allen (1888), 84. Model of artistic work, 43, 63, 93, 127, 223- 26, 242; § I (b), 46s; § s (g), 468; R. § 14, 498; § 20, soo; § 25, soii E. § 2, si8; § 3s, 542; C. § 2, SSS; § 4. 55^- See also Artistic work, Sculpture. Modification. See Alteration. Molds, 266, 268, 270, 376; § 25 (d), 476; § 27, 477; E. § 2, S18; § 35, 543; C. § 4, 5S8. Monaco, 214, 321, 322, 323, 330, 413. Monaghan v. Taylor (1886), 193. Monarch Book Co. !i. Neil (1900), 244. Monastic copyists, 8. Monckton ». Gramophone Co. (1910), 62. Monkswell bill, 31. Monograms, 70; § 18, 472. Monologues, 171. Monopoly copr., 13, 50, S4. ^SS- Monroe-Smith Amendment, 117. Montalembert, 9, 453. Montenegro, 62, 124, 321, 322, 414. Montevideo congress, 331; convention, 331, 419; text of, 633-36. '5ee also Interna- tional, Pan Amer. Union and names of countries. Moore, T:, 341. Moore v. Edwaides (1903), 176. Morocco, 418. Morrill rpt. (r873), 353. Morris ». Coleman (1812), 441. Morris, E: J., bills (1858-60), 348. Morrison v. Pettibone (1897), 272. Mortgage, right to, 46, 48; § 42, 4S2. Morton, J: P., 352. Mosaics, 234. Mott V. Clow (1896), 237. Moving pictures, 71, 77, 163, 175, 176, 178, 211, 224, 241, 242, 328, 376; R. § 4, 496; § 8, 497; § IS. 498; E. § I, 518; § 35, 542; C. § 2, 555; § 3 (2), 557; I. 618. Munro v. Beadle (1888), 262. Munro v. Smith (1890), 262. Murphy v. Christian Press Assoc. (1899), 50. Musical work, 14, 162-201, 202-21, 296, 375, 387; E. § I, 517; C. § 3, 557; classifi- cation and definition, 63, 162, 318, 326, 332, 393; § 5 (e). 468; R. §9, 497; § 10,498; E. 550-52; C. § 2, 555; Au. §4, 580; 1. 603; P- 633, 634, 637, 649; acts, 31, 32, 36, 37, 182, 193, 195, 208, 379, 550, 552; E. § II (4), 525, 547; duties, 288; excepted from manufacturing clause, 167; formalities, 86, 119, 127, 139, 144, 151, 166, 168, 189, 206, 393, 406, 407, 409; § II, 470; 5 18, 472; § 19,473; § 25 (e),477; R- § 18,499; § 44, 45, 508; C. § 3, 557; § 26, 568; Au. § 13, § 14, 584; § 32, 588; I. 614; infringe- ment, 195, 266, 268, 394; §. 25 (b), 476; E. § II (4), 525, 549, 551; Au. § 46, 591; § 51, 593; manufacture, 168; performance, 59, 165, 183, 185, 322, 327, 394, 404; R. § 23, 500; E. § I (3), 518; Au. § 14, 584; I. 606; prior publication, 183, 185; special rights, 42, 43, 45, 162, 163, 164, 169, 198, 202, 392; § I (e), 465; E. 1 1, 517, 518; C. § 2, SS6, 577; Au. § 13, 14, 584; I- 613. INDEX 697 See also Adaptation, Arrangement, Dra- matico-musical, License, Mechanical, No- tation, Term, Transcription, etc. Musical copr. Committees, 32, 196, 459. Music sheet, see Sheet. Name, author's right in, 98, 100, 333; P. 639; as proof, 152, 200, 241, 319, 329, 333, 336, 378; E. § 6, 523; I. 617; P. 634, 639, 650; in application, 420, 421, 437; R. § 29, 502; § 3O1 S°3; i° copr; notice, 105, 128, 129, 135. See also Application, Author, Evi- dence, Notice. Natal, 396. See also South African Union. National Assembly, French, 18, 114, 398. Nat. Tel. News Co. v. West Union Tel. Co. (1902), 89. Nationality. See Foreign author. Residence. Negatives, 36, 123, 239, 240, 245, 247, 248, 393; E. § 35, 543; C. § 2, S56; § 31. S7o; Au. § 13, 584. See also Photograph. Netherlands. See Holland. Nethersole v. Bell (1903), 174. Neufchitel, literary congress (1891), 209. Neufeld v. Chapman (1901), 448. New Brunswick, 383. New editions. See Editions, new. New Hampshire copr. legislation, 35, 39, 194. New Jersey copr. legislation, 35, 39, 194. New South Wales, excepted in Brit, treaty, 381. See also Australia. N. Y. Press Pub. Co. <-. Falk (1894), 238. N. Y. State legislation, 35, 39, 40, 194, 239; copr. vested in, 98. New Zealand, 375, 382, 394; E. § 35, 543. Newbery's case (1774). See Hawkesworth case, 81. Newfoundland, 119, 151, 152, 160, 168, 188- 90, 246, 321, 375, 382, 390; E. § 3S, S43; laws, 456. News, 89, 103, 259, 264, 319, 328, 337, 406; I. 613; P. 651. 5ee oZio Telegraph. Newspaper, 63, 87, 90, 131, 245, 266, 267, 279, 280,328,337; § s (b), 467; § 19, 473; § 31 (b), 479; R. § 6, 497; E. § IS, 527; § 3S, S'^S; C. § 14 (6), 564; § 22, 567, § 30, 569; Au. § 4, 581; I. 611; P. 651; reports, 68, 70, 91, 103, 183, 264, 376, 377; E. § 2, S19; § 20, S33; C. § 4, SS8; P. 634, 639, 651. See News, Periodical, Photographs. Next of kin. See Heirs. Nicaragua, 112, 124, 198, 323, 332, 334, 336, 340, 422, 423, 643, 652. NichoUs V. Parker (1901), 236. Nicklin, Philip H., 344, 454. Nicols V. Pitman (1884), 254. Nigro, Joanes, 13. Nigrus, Peter, 10. Non-copyright matter, 63, 76, 81, 241, 255, 257, 261, 288, 433; E. § 2, 519- North Carolina copr. legislation, 35. Norway, 112, 124, 197, 200, 248, 316, 317, 321, 323. 33o> 340, 407- Notation, musical, 43, 45, 164, 169, 170, 202, 217, 392; § I (e), 46s; Au. § 13, 584. Notes by hearer, 90. Notice copr., 36, 74, 121, 125, 126, 127-36, 150; § 9, 469; R. § 22, § 23, soo; § 26, soi; C. § 3 (2), SS7; artistic work, 225, 227, 230, 232, 23s, 242; collections, 81; date, 129; 133, 230; dramatic and musical works, 166; early, 19; false, 77, 134, 135, 142, 148, 276, 279, 280, 513; § 29, § 30, 478; Au. § ss, SQS; foreign works, 133, 146, iss, 366; form, 127, 131, 166, 225; § 18, 472; R. § 24, § 2S, soi; before 1909, 36, 37, 128; in British Em- pire, 150, 151, 373-97; in other countries, 400-29; interim works, 126, 135, 147, 148; § 9, 469; § 22, 474; R. § 26, soi; C. § 23, S68; name, 127, 129, 166; § 18, 472; R. § 24, § 25, 501; substitution of name, los, 13s; § 46, 483; R- § 43. 5°8; omission of, 118, 121, 130, 134, 146, 230, 234, 23s, 236, 2S3. § 20, 473; penalty for removal, 134, 276; § 29, 478; periodicals, 88, 130, 131, 319, 328, 400, 403; § 19, 473; 1. 612; posi- tion, 37, 130, 131, 132, 166; § 19, 473; C. § 3 (2), S77; pseudonymous work, R. § 24, soi; renewals, 118; separate volumes, 132; successive editions, 134; transla- tions, 78, 397. Notice of authorization; Au. § 29, 588; of reproduction, 123; E. § 3, 520; of reserva- tion, 201, 313, 412; oral work, 29, 200, 264, 377, 397, 398-429; E. § 2 (i), 519; C. § 4, SS8; Au. § 33, S89; performance, 150, 182, 698 INDEX 183, IQS, 199. 200. 319, 394, 397; Au. § 32, 588; I. 614; to prohibit importation; E. § 14 (i), 525 (s) 526. See also Customs. Notice of user. See Mechanical reproduction. Nova Scotia, 383. Novelization, 42, 61, 169, 172, 322, 328, 376, 431; § I (b), 46s; E. § I (2), S18; C. § 2, 556; Au. § 13, 584; I. 614. Novelties noncopr., 72, 223, 224; R. § 12, 498; § 16, 499. Official publications. See Government pub- lications. Ohio copr. legislation, 39, 194. Ojibwa Indians copr., 41. "Old sleuth" cases, 262. Omission of notice. See Notice. Omissions from musical works, E. § 19 (2), 530 (7), S32. See also Alterations. Opera, 162, 163, 166, 168, 182, 196, 404; R. § 8, § 9, 497- Operettas, 162, 163; R. § 8, § 9, 497. Oral work (addresses, lectures, sermons, etc.) , 42, 59, 61, 63, 67, 70, 90, 333, 337,377, 393, 403; § I (c), 46s; § s (c), 468; R. § 7, 497; E. § I (2), 518; § 17, 529, § 20, 533; § 35, 543; C. § 2, ss6, S57; Au. § 4, 581; § 15, 584; § 25, 587; § 33, 589; I- 612; P. 634, 639, 651; assignable, Au. § 24, § 26, 587; deposit, 86, 144; § 11, 47°; R- § 18, 499; infringement, 264, 266, 267; § 25 (b), 476; Au. § 45, § 46, S91; mechanical reproduc- tion, E. § 3S, 543; C. § 2, 556; notice, 91, 151, 264, 377; E. § 2, S19; C. § 4, SS8; Au. § 33, 589; publication, 91; E. § i (3), 518; Au. § IS, § 16, § 17; registration, 91, 139; Au. § 66, 599; § 74, 600; terms, 119, 401. See also Newspaper reports. Orange Free State, 160. See also South African Union. Oratorios, 59, 164, 166, 16S; § 28, 478. See also Dramatico-musical work, Musical work. Orchestral work, 169, 187. See also Musical work. Order, works on. See Employer. Orders in Council, 31, 379; E. § 23, 534; § 26, 537; § 28, 538; § 29, 539; § 30, 540; § 32, 541; § 35 (3). 543; C. § 43, 576- Ordinances de Moidins, 18. Ordnance surveys, 123. Oregon copr. legislation, 39, 194. Origin, country of. See Country of origin. Originality, 68, 81. See also Merit. Ornamental letters or scrolls noncopr., 224; R. § 16, 499. Osgood ». Allen (1872), 82, 85. Osgood V. Aloe (1897), 128. Ossler, Dr. Jacob, 11. Osterrieth, Albert, 461. Out Young Folks case, 82. Outright sale, 106, 116, 117, 118, 364, 434, 442. Owner, rights of, 43, 46; E. § 7, 523; § 9, 524; § 21, 533; C. § 9, 561. See also Author, Corporation, Proprietor. Ownership of copr., 3, s, so, 95-113, 238, 269, 318, 327, 333, 336, 377, 378, 393, 437, S77; § 8, 469; § 62, 488; R. § 2, 495; E. § s, 521; § 6 (3), 522; § 16, S29; § 17 (2), 529; § 29, 539; C. § 7, 560; § 30, 569; § 36, 574; Au. § 18, 585, § 19, 586, § 25, 587, § 43. S91; I. 606-09; P- 633, 637, 638, 650. Oxford Univ. Press, 121. Oxford University. See University deposit. Page. See Sheet. Paintings, 29, 37, 223, 228, 229, 232, 234, 238, 246, 247, 248, 250, 274, 326, 332; R. § 12, 498; E. § 35, 542; C. § 2, SS5; Au. § 4, 580; I. 603; P. 634, 637, 649; formal- ities, ISO, 388; § 26, 568; in pubic place, 264, 376; E. § 2 (i), S19; C. § 4, ss8; in- fringement, § 25 (b), 24s, 266, 267; § 25 (b), 476; reproduction by tableaux, 242. See also Artistic work. Material object. Palmer v. DeWitt (1872), 180. Palmerston, Ld., 346. Palsgrave, J: 21. Pamphlets, 70, 290, 326, 332; R. § 4, 496; E. § IS, 527; C. § 23, 568; Au. § 4, 580; I. 603; P. 633, 637, 649. Pan Amer. Union, conferences, 331, 334, 336; conventions, 112, 132, 250, 332-37; texts of, 633-632. See also International conventions and names of cities. Panama, 124, 152, 423. See also Canal Zone. Pandects, 17. INDEX 699 Pantomimes, 175, 198, 326; I. 603. Papal grants, 17. Pappa Alesio, 16. Paraguay, 124, 317, 331, 332, 426. Paris acts, 185, 197, 209, 249, 296, 321, 322; I. 628; text, 603-631; conference (1896), 209, 321; literary congress {1878), 314. See also International conv., University. Park & Pollard ji. Kellerstrass (1910), 238. Parke, Baron, 2, 4. Parkinson v. Laselle (1875), 149. Parliament, acts of, 24-34, early petitions to, 23. See also Britisli Empire. Parliamentary papers, 459. Parody, 190. Partnerships, 273, 286, 403, 433; R. § 33, 505. See also Joint Authors. Parton, James, 348. Parts of work, 64, 76, 87, 90, 92, 131, 132, 143. I4S. i73> 243, 2S7, 287, 318, 403; § 3, 467; E. I 35, 543; C. § 22, 567; Au. § 4, 580; § 20, 586; I. 611, P. 650. See also Composite, Extracts, Quotation. Passages permitted in collections, E. § 2 (i), 519. See also Extracts, Fair use. Quotations. Passing ofif. See Fraud, Intent. Patents, 12, 14, 18, 21, 54, 93, 161; acts, 33, 161, 379; E. § 22, 534", commissioner of, 96, 308, 309; registration as, 37, 223,310. See also Congressional Committees, Con- gressional hearings. Patterns, 93; chart, noncopr., 70. Patterson v. Ogilvie (1902), 192, 273. Payne tariff, 288. Pearsall-Smith licensing plan, 51, 204, 449. Peary cases, 89, 102. Peckham, Justice, 273. Penal provisions, 275. See also Punish- ment. Penalties, 15, 19, 22, 24, 36, 272, 273; E. 549; Au. § S7, S96; failure to deposit, 36, 143, 150-52. 374, 378; § 13. 470; E. § IS (6), 527; false afifidavit, 158; § 17, 472; false entry, notice, etc., 37, 134, 276; § 29, 478; C. § II, 562; Au. § sSi 595; infringement, 6, 12, 13, 16, 37, 19s, 196, 272, 276, 379, 389; E. § 28, 478; § 9 (2). 524; § II, 524, S47, SSi; C. § 13. 562; Au. § SO-S4. S92- S9S. See also Damages, Punishment, Remedies. Pennsylvania copr. legislation, 35, 39, 194. Pentateuch, 14. Perforated music-rolls. See Mechanical Instruments. Perform, right to. See Playright. Performance, 67, 177, 379; E. § 2 (3), 520; § II (2), 524; § 35 (2), 543> 545; C. § 4 (3). 559; § 13 (2)> 563; Au. § 16, 585; and publication, 180-85, i97, 376; E. § i (3), 518; C. § 2,556; I. 608; assignment, 189; E. § 24 (i), 534; gratuitous or for profit, 43, 45. 59, 164, 165, 186, 190, 199, 202, 275, 404; § i(e), 46s; § 28, 478; permissive, 60, 164, 404; § 28, 478; registration, 184. See also Dramatic, Dramatico-musical work. Notice, Playright, Publication, Representation. Periodicals, 63, 64, 76, 87, 90, 148; § 3, § 5 (b), 467; R. § 6, 497; E. § 35, 542; C. § 30, 569; Au. § 4, 580; copr. catalogue of, 300; copyrightable by numbers, 88; R. § 36, 506; P. 650; formalities, 131, 138, 139, 143, 387, 410; § 12, 470; § 19. 473; R- § 36, 506; E. § IS (7), 527; C. § 22, 567; impor- tation, 286; § 31 (b), 479; manufacturing provision, 88, 143, 153, 154. 286; § 12, 470; § IS, 471; R. § 36, 506; pirated material in, C. § 14 (6), 564; renewal, 115; § 23, 474. See also Composite work. Newspaper, Notice, Title. Periodical contribution, 64, 71, 76, 87, 99, 148, 319, 328, 398, 43S; § 3, 467; R. § 4, 496; E. S45; C. § 30, 569; Au. § 4, 580; § 22, § 23, 586; I. 611, 612; P. 634, 639, 651; formalities, 28, 100, 122, 131, 138, 139, 142, 143; § 12, 470; R. § 37, 506; in other countries, 398-429; renewal, 104, 115; § 23, 474; republication, 393, 433, Au. § 22, 586. See also Composite work, Parts, Serial publication, Term. Perpetuity, copr. in, 13, 18, 25, 26, 123, 124, 183, 377, 398, 401, 407, 420-22, 429. Persia, 323, 418. Personal use. See Private use. Peru, no, 294, 323, 331, 332, 427, 636, 643, 652. 700 INDEX Petitions, 23, 341, 346, 347, 348, 351, 3SS. 359, 4SS. See also License. Philip V. Pennell (1907), 92. Pliilippine Islands, 39, 108, 270, 418; § 34, 481. Phonograph. See Mechanical reproduction. Photo-engravings, 138, 139, 144, iS3, iSS, 156, 226, 228, 229; § IS, 471; § 16, 472; R. § 19, 500; § 27, S02. Photo-lithograph, E. § 35, 542; C. § 2, SSS- Photographs, 30, 36, 37, 64, 113, 219, 223, 224, 226, 228, 229, 240, 243, 24s, 250, 274, 320, 326, 328, 332, 336, 377, 393; § S (j), 468; R. I IS, 498; § 19. Soo; E. § 3s, S42; C. § 2, sss; Au. § 4, s8o; I. 60s; P- 634, 637, 649; alterations, 244; as publi- cation; E. § 1(3), 518; duties, 288; formali- ties, 127, 140, 141, 144, 150, 152, 225, 226, 227, 241, 307, 391, 406, 407, 409; § II, 470; § 18, 472; § 61, 487; R. § 19, § 20, soo, § 2S, soi; § 40, S07; C. I 3 (2), SS7; § 26, s68; in other countries, 248, 398- 429; in public place, 264, 376; E. § 2 (i), 518; C. § 4, ss8; infringement, 37, 243, 24s, 266, 267; I 2S (b), 476; on order, 238; E. § S (i), 521; C. § 7, s6o; Au. § 39, 590; special term, 122, 247, 248, 328, 377, 394, 403, 406, 407, 409, 416, 417; E. § 21, S33; C. § 31, 570; I. 6o5, 610. See also Artistic work, Negatives. Pictorial illustrations. See Illustrations. Pierce & Bushnell Co. v. Werckmeister (1896), 233. Pierce, President, 347. Pigeons, messages, 396. Pins noncopr., 224; R. § 16, 499. Piola-Caselli, Eduardo, 461. Piracy, Pirated copies. See Infringement. Pitt Pitts V. George (1896), 292, 296. Place of notice. See Notice. Place, public. See Public place. Plans, 70, 247, 248, 326; E. § 2, S18; § IS (7), 527; c. § 2, sss; § 3 (2), SS7; § 4, ssS; au. § 4, s8o; I. 604; P. 634. See also Archi- tectural drawings. Plastic work. See Sculpture. Plates, IS3, 266, 268, 270, 393; § 15, 47i; § 25 (d), 476; § 27, 477; R. § 27, S02; E. § s (i), S2i; § 7, 523; § " (2). S24; § 3S.. 543, 552; C. § 2, SS6; § 9. S6i; § 13 (2), 563; § 31, 570; Au. § 13, 584. See also Mechanical instruments. Plats, 223; R. § II, 498. Piatt, O. H., so, 278; bill (1889). 361. Playing cards, 242. Playright, 8, 36, 42, 4s, 61, 162-202, 319, 328, 376, 393, 4S9; § I (d), (e), 46s; E. § i (2), S18, S4S; C. § 2, 556, S77; Au. § 14, 584; § 16, s8s; § 2S, S87; I.614; assignable, Au. § 24; § 26, S87; formalities, 19s, 391, 394, 397; Au. § 32, s88; § 65, S99; I- 614; infringement, 190-94; Au. § 45, § 46, S9i; in other countries, 197, 398-429; state protection, 39, 194. See also Dramatic, Dramatico-musical, Infringement, Li- cense, Mechanical reproduction. Perform- ance. Poems, s8, 7°, 81, 404; R- § 4, 496; I- 614- Police powers, 319, 334, 337; I. 618; P. 640, 6s 2. See also Court. Political speeches. See Oral work. Pope V. Curl (1741), 92. Porto Rico, 39, 108, 270, 42s; § 34, 481. Portraits, 113, 238, 244, 248, 393, 404; E. § S, S2i; C. § 7, s6o; Au. § 4, s8i; § 38, S90. Portugal, III, 124, 323, 340, 411, 490. Possession, copies found in, 273. See also Damages, Seizure. Post card, 224, 229, 289; R. § 16, 499. "Post Office Directory." 5ee Kelly b. Byles. Post Office regulations, 279, 282, 515; § 33, 480. Posters. See Circus posters. Posthumous works, 92, 102, 104, 113, 115, 122, IS2, 321, 328, 377; § 23, 474; E. § 17, S29; C. § 28, S69; Au. § 17, s8s; L 610; in other countries, 398-429. Postmaster-General. See Mails, Post Office. Pouillet, Eugene, 460. Practice, rules of U. S. Supreme Court, 266, 268, 491; § 2S, 477- Prefaces, 71; R- § S, 496- President. See Proclamations and names of Presidents. Press Assoc, v. Reporting Agency (1910), 89. Press Pub. Co. v. Falk (1894) 238. INDEX 701 Press Pub. Co. ti. Monroe (1896), 45, 48. Preston, Senator, 344, 346. Price-list copr., 88. Price limitation, 14, 15, 17, 24, 27, 46, 49, 55, S7, 207; C. § 6, SS9. Prima facie evidence. See Evidence. Prime, S. Irenseus, 348. Prince Albert v. Strange (1849), 187, 238. Print, right to, 42, 45, 163; § i (a), 465. Printer's lien, 449; privileges, 10-17, i9> 20, 21. Printing, early, 10-23. See also Manufac- turing provisions. Prints, 64, 127, 223, 224, 226, 309; § s (k), 468; § 18, 472; R. I 16, 499; § 25, soi; E. § 3S> 542; C. § 2, sss; § 26, 568; Au. § 4, 580; § 40, sgo; [goods] acts (1787, 1789, 1794), 27, 246; (Ireland) act, 28, 246. Private copr. acts, 27, 38. Private performance. See Performance. Private use, 259, importation for, 281, 290, 293, 294; § 31 (d); E. § II, 524; C. § 13, 562; reproduction for 264, 376, 404; E. § 2, S18; C. § 4, SS8. Privately printed works, S3- Privileges. See Printers. Procedure, 265-277; § 25, 47S; § 26, § 27, 477; § 34-39>48i; § 40, 482; E. §7, 523; U. S. Supreme Court rules, 491. See also Court jurisdiction, Remedies. Proceedings of societies. See Publications of. Processes. See Methods. Proclamations, Presidential, 108, iii, 202, 339, 489; § 8, 469; R. § 2, 495. Produce, right to, 42, 4S. 61, 163, 376; § i(d), 46s; E. § I, S18; C. § 2, 556. Profits, 171, 265, 267, 448; § 2s (b), 476. Projected work noncopr., 86. Proof. See Evidence. Proofs, printer's, 432, 442. Property rights, 45, 47, 314; differentiated, 46; contractual, 97, 430, 436-43; natural, 3, 4, 9, 43, 62; § 2, 467. See also Common law. Material object, Ownership, Proprie- tor, Rights, etc. Proprietor, 95-113; § 8, 469; definition, 23, 96, loi, no; liability; 126, 193, 394; E. § 2, 520; C. § 4, SS9; Au. § 51, 593; non- qualified, no; R. § 2, 49S; periodical con- tribution, loi, 104, lis; § 23, 474; C. § 30, 569; Au. § 22, 486; renewals, 104, 106, 115, 117; § 23, 474; § 24, 47S; R- § 47. 509- See also Assigns, Author, Composite work, Employer, Owner, Property, Publisher, Rights. Prussia, 311, 402. See also Germany. Pseudonymous work. See Anonymous. Public documents. See Government publi- cations. Public documents bill (1895), 37. Public domain, works in, 65, 118, 127, 170, 243. 244, 256, 319, 320, 329; § 7, 468; I. 605, 619, 620; P. 639, 650. See also Non- copyright matter. Public place, works in, 264, 376, 404; E. § 2, 518; C. § 4, SS8. Publication, 47; definition, 53, 59, 91, 126, 179, 181, 197, 214, 224, 231, 233, 234, 243, 250, 322, 327. 376, 389; E. § I, S18; C. § 2, 557; Au. § 4, s8i; I. 608, 6og; date, 52, 109, 119, 126, 129, 138, 139, 148, 179, 248, 318, 333, sii; 1 62, 488; R. § 29, S02; § 32, S04; § 33. 505; I- 611; P- 638, 650; enforced, 29, 49, 123, 377; E. § 4, 521; C. § 6, 560; Au. § 77, 601; initial step, 5, 52, 126, 133, 136; § 9, 469; R. § I, § 3, 49S; § 22, 500; E. 54s; Au. § 16, 585; of regis- tered unpublished work, 145; R. § 21, 500; rights before, 44, 47. See also First, Simul- taneous, Exhibition, Performance, Gov- ernment, Republish, Serial, Term. Publications of societies, 53, 88, 412; R. § 6, 497; I- 611; P. 638, 650. Publish, right to, 42, 45, 61, 163, 333, 376, § I (a), 46s; C. § I, S18; Au. § 4, S8i; P. 633. 637, 649- Published work, definition, 197, 250, 322, 327; R. § 23, 500; I. 608; P. 650. Publisher, author's representative, 96, 129, 329; C. § 24, 568; 1. 617; assumed proprie- tor, 9S, 403; E. § 6(3), 523; early relations, 8-23; equity in renewal, 117; relations with author, 409, 430-52. See also As- signs, Author, Contract, Proprietor, Re- newal. PubUshers Association of Great Britain and Ireland, 458. Publishers' petitions. See Petitions. 702 INDEX Publishers' Weekly, 355, 357, 358. Pulte V. Derby (1852), 446. Punishment, 194, 196, 275, 276, 379, 404; § 28, 478; C. § 13, 562; § 14, 564; spiritual, 17- Putnam, G: Haven, 9, 16, 31, 51. 360, 362, 453. 4S4, 4SS- Putnam, G: Palmer, 28, 346, 347, 348, 355. Putnam, Herbert, 308, 366. See also Libra- rian of Congress. Putnam v. Pollard (1880), 40. Putter, Johann Stephan, 12, 461. Puzzles noncopr., 71, 224; R. § 5, 496; § 16, 499- Pynson, Richard, 19. Quality. See Merit. Quantity not essential, 73, 254. Queensland. See Australia. Quotation, 173, 190, 253, 256, 359. See also Extracts. Racing charts copr., 70. Railroad time-tables copr., 70. Randolph, A. D. F., 350. Ratification, Attorney General's opinion, 337; of conventions, 112, 320, 322, 329- 332, 334, 336, 337. 340; I. 628, 630; P. 63s, 640, 647, 652. Ratisbon, Bishop of, 10, Ravenna, Peter of, 13. Reade, C: 457. Reade v. Bentley (1858), 434, 444. Reade v. Conquest (1862), 172. Reading, public. See Recitation. Rebinding, 159, 263, 287, 514- Rebuses noncopr., 71, 224; R. § S. 496; § 16, 499- Receipt for copies, 137, 145, 304; § 14, 47i; § ss. 484; Recipes copr., 70, 75. Reciprocity provisions, 37, 107, 202; § i (e), 46s; § 8 (b), 469; E. § 29, S39; C. § 34, S73; Au. § 62, 598. See also Proclamations. Recitation, 90, 178, 200, 264, 377, 408; E. § 2. S18; § 3S, 542; C. § 2, 5S5. Re-copyright objectionable, 230. Record & Guide Co. v. Bromley (1910), 128, 136. Record books, blank, noncopr., 71; R. § 5, 498. Register of Copyrights, 37, 96, 105, 136, 144, 297. 299. 3°o, 3°2. 303, 308; 1 10, 469; § 13, 470; § 45. 482; §§ 47-49, 483; §§ 50-Si. 53-57. 484-85. See also Assistant. Registers (records) of coprs., 22, 150, 300, 303. 310; § 54. 484; C. § 22, 567; Au. § 64, S99; § 71-73. 600. See also Copyright records. Registrar of Copyrights, 310, 389; Au. § 4, 581; I 9. 582. Registration, 96, 126, 133, 136, 143, 150, i8g; § 10, 469; § 12, 470; R. § i; § 3. 495; §§ 17- 23. 499-501; application, 63, 136, 137, 168, 207, sii; § 5. 467; R- § 29, 502; §§ 30- 31, 503; C. § 7 (s), 561; assignment, C. § 7 (3), 560; certificates, 136, 140, 168, 304, 333; § 55. 484; Au. § 69, § 70, 599; I. 638; early provisions, 6, 16, 22, 24, 28; errors, C. §40, S7S; Au. § 72, § 73, 601 ; false, C. § 11, 562; Au. § 76, 601; fees, 141, 306; § 61, 487; R. § 40, 507; C. § 39, S74; foreign works, 146; in British Empire, 24, 150, 184, 189, 246, 310, 312, 373-97; C. §§ 22- 27, 567-69; Au. §§ 64-76,599-601; in other countries, 151, 310, 399-429; P. 638, 642- 48; interim, 147; joint authorship, loi; new editions, 134; oral work, S9, 119; Pan American, 335; P. 642-46; periodi- cals, 88, 138,387; periodical contributions, 100; R. § 37, S06; renewal, 115, 116; § 23, 474; § 24, 47s; separate volumes, 132, 306; § 61, 487; unpublished works, 119, 144, 179; R. § I, 495; on publication, 145. .See also Application, Certificate, Formalities. Regulations, Copr. Office, 136, 299, 303, 455, 495-510; § 53, 484; for importation, 279, 282, 290, 513; § 33, 480; E. § 14, 525; in- ternational bureaus, 319, 329, 335; I. 623; P. 645; Supreme Court, 268, 269, 372, 491-94; § 25, 477. Reichardt ». Sapte (1893), 187. Reichsanzeiger, 403. Re-importation, 159, 283. 5ee also Importa- tion. Remedies, 44, i95. 206, 265-77, 378, 379; § 25, 475; § 28, 478; E. §§ 6-13, 522-25; C. § 8-15, 561-65; Au. §§ 45-57, 591-97. INDEX 703 ■See also Damages, Infringement, Penal- ties, Punishment. Remittances to Copr. Office, 141; R. § 40, S08. Renault, Prof. L., 325. Renewal, 14, 24, 35, 36, 38, s8, I14-124, 148, 246; § 23, 474; R. §§ 46-48, sag; con- tributions, 104, lis; § 23, 474; R. § 47,509; estoppel of, 118; extension of subsisting, 117, 140; § 24, 47s; R. § 46, S09; formali- ties, IIS, 118, 140, 141, 306, 309; § 23, 47S; § 61, 487; R- § 46, § 47, S09; owner- ship, 104, 106, 116, 117, 43S, 447; § 23, 474; § 24, 47s; R. § 46, S09; subsisting copyright, 116, 117, 140, 141; § 24, 475; § 61, 487; R. §§ 46-48, S09; unpublished works, 119, 179. See also Extension, Registration, Term. Repeal, 283, 379; § 63, 488; E. § 26, S37; § 36, S44, 546-47; C. § 44, § 4S. 576, S78- 79- Replevin suits, 46, 273, 274. See also Suits. Report, right to, Au. § 15, S84; § 33, 589- See also Oral work. Report, Register of Copyrights, 299, 302, 303. 324. 366; § 49, 483; § SI. 484; Direc- tor of International Bureau, 320, 329; I. 624. Reports on copr., 32, 344, 346, 348, 353, 362, 369, 371. See also Names of Con- gressmen, Election, Law, Newspaper re- ports, Oral work. Representation, right of, 37, 42, 45, 163, 197, § I (d), 46s; R. § 23, Soi; E. § 3S, S43; C. § 2, SS6; § 4, SSQ; Au. § 4, s8o; I. 608; 613, 618; P. 640, 6s2. See also Perform- ance, Playright. Representatives, House of. See Congres- sional; also names of Representatives. Representatives, legal. See Assigns, Heirs. Reprint, right to, 42, 4s, 163; § i (a), 465. Reprints of copr. works, 134, 293, 294, 385. Reproduce, right to, 42, 4S> 61, 163, 333, 376, § I (d), 46s; E. I, §, si8; C. § 2, ss6; Au. § 34, 589; § 41, 591; P- 633, 637- 650. Reproductions of artistic works, 64, 223, 228, 234, 23s, 404; § S (h), 468; R. § 13, S98; E. § 2, si8; § 24, 534; § 35, 542; C. § 2, 555, § 4, 558; I. 613; P. 634, 639, 651. ^ee also Infringement, Mechanical repro- duction. Republish, license to, 29, 123, 377, 412, 415; E. § 4, 521; C. § 6, 559; Au. § 77, 601; ^ee also License. Reputation of author, 46, 85, 100, 244, 274, 404, 435, 443- Research, use for, 264, 376; E. § 2 (i), 518; C. § 4, 558. Reservation of copr. 5ee Interim copyright, Notice of reservation. Residence, 107, 108, 138, 139, 151, 200, 246, 373, 375, 376, 387, 388,405, 420; § 8, 469; R- §2,495; § 29,502; § 30,503; E. §§25- 27, 536-38; § 29, 539; § 35, 544; C. § 2 (4), § 3, 447; § 34, 573- See also Country, Foreign author. Restraint of trade, 57. See also Limitation. Retroactive effect, 328; E. § 24 (i), 534; I. 615. Revenue act (1889), 31, 33, 293, 379. Reversion in periodical contributions, 29, 122, 440. See also Assignment, Heirs. Reviews, 87, 264, 376; R. § 6, 497; E. § 2, 518; § IS (7), 527; § 35, 542, 545; C. § 4, 558, § 22, 567; § 30, 569; Au. § 4, 581. Revised Statutes. See U. S. laws, Canada. Rex V. Bokenham (1910), 277. Rex !;. Willets (1906), 277. Rhenish Celtic Sodalitas, 11. Rhode Island copr. legislation, 35. Richard III, 19, 20. Rifformatori, 15, 16. Rights, 42-52, 218; §§ 1-3, 465-67; § 8,469; E. §§ 1-5, 517-22; C. § 2, 556; Au. § 13, 584; P. 633, 634, 637, 638, 649, 650; exist- ing and substituted; E. § 24, 534, 545; C. § 33, 571, 577- See also Common law, Con- sent, Property, Proprietor, Material ob- ject, Dramatize, Mechanical reproduction, Translate, etc. Rinehart v. Smith (1903), 273. Rio de Janeiro conference, 331, 334; conven- tion, 334, 336, 419; text of, 642-48. See also International, Pan Araer. Union, and names of coimtries. Ritchie, P. E., 389. Road books copr., 69. Robertson, J: 346. 704 INDEX Robinson, W. E., bill (1882), 356. Rolls, perforated. See Mechanical instru- ments. Roman literature, 8. Rome literary congress (1882), 314. Roosevelt, President, 368, 371. Rosebery's, Ld., speeches reported verbatim, 68. Rosmini, Enrico, 461. Rothlisberger, Ernest, 330, 462. Roumania, 323, 414. Routledge v. Low (1868), 109, 374. Rowlett, J: private copr. grant, 38. Royal Copr. Commission. See Commission. Royal Sales Co. i;. Gaynor (1908), 70. Royalties, 123, 124, igg, 201, 202, 206, 207, 209, 211, 268, 377, 38s, 412, 43S, 437, 439, 440, 447-Sii I I (e). 466; I 25 (e), 477; E. § 3, 520; § 19, 530-33; § 24, 534; C. § 6, S59; § 33, S7i; § 41, S7S- See also Licenses. Rules. See Regulations. Russell V. Smith (1848), 176, 189, 191. Russia, 124, 197, 214, 29s, 323, 409. Saake v. Lederer (1909), 107. Sabellico, 10, 13. St. Columba, 9. St. Leonards, Ld., i. St. Mark's library, 16. Sale, 10,42, 45-49, 54-57, 127, 163, 265, 333, 378; § 1, 465; C. § 4, 559; § 13, 562; P. 633, 637, 649; as publication, 53, 127; § 62, 488; Au. §4, 581; control of, 5, 54, 60; with- drawal from, 49. See also Assignment, Ma- terial object. Outright. Salvador, 112, 316, 332, 334, 336, 340, 422, 423, 643, 652. Sampson & Murdock Co. ». Seaver Rad- ford (1905), 255- Sarpy v. Holland (1908), 313. San Domingo. See Dominican Republic. San Marino, 413. Sanborn, Judge, 47. Sandwich Islands. See Hawaii. Sarpy v. Holland (1908), 313. Scandinavian countries, 248, 407. See also Denmark, Norway, Sweden. Scenario, 145, 176; R. § 18, 500. Scenes, infringing, 174, 191. Scenic composition, 175, 178; E. § 35 (i), 542; C. § 2, sss; Au. § 4, 581. See also Dramatic work. Schedules, British, 377, 379; E. § 2, 519; § 36, S44, 546; C. § 33, 571, 576. Schemes noncopr., 61. See also Arrangement, Methods. Schlesinger v. Bedford (1890), 173. Schlesinger v. Turner (1890), 173. Schoffer, 10. Scholz V. Amasis (1909), 176. School books. See Education. Schoolcraft, private copr. grant, 38. Schott, Johann, 11. Schumacher v. Wogram (1888), 130, 237. Scientific work, 64, 127, 140, 154, 156, 223, 224, 225, 228, 229, 326, 333, 388; § 5 (i), 468; § 15, 471; R- § 14, 498; 1. 603; P. 634, 637, 649- Scope of copr., 42-62, 318, 319, 326, 327, 332, 375, 387, 392, 393; § 1-3, 465-67; E. § 1-5, 517-22; C. § 2, 556; Au. § 13-15, 584; I. 606; P. 633, 634, 637, 649. Score-card noncopr., 70. Scotland, E. § 12, 525, 549, 552. See also British. Scribner v. Straus (1908), 55, 56; other cases, 260. Scriptorium, 8. Scrolls, ornamental, noncopr., 224; R. § i5, 499- Scrutton, T. E., 181, 458. Sculpture, 27, 64, 66, 127, 145, 151, 223, 224, 225, 226, 229, 243, 24s, 246, 247, 248, 250, 264, 266, 267, 326, 332, 370, 388; § s (i), 468; § II, 470; § 18, 472; § 25 (b), 476; R. § 12, § 14, § IS, 498; § 20, 500; § 25, Soi; E.§ I (3), 518; § 2, 518; § 35, 542; C. § 2, 555; § 3 (3); § 4, 558; § 26, 568; Au. § 4, 480; I. 603; P. 634, 637, 649; acts, 27, 246. See also Architecture, Artistic work. Seal of copr. oflSice, 141, 300, 303; § 52, 484. Sealed deposit of author's name, 420, 421, 427. Search warrants, E. 552; C. § 15, 564; Au. § 52, 593- Searches, 306, 309; § 61, 487; R. § 49, 5°9l Au. § 7ij 600. INDEX 705 Secretary of the Treasury, 121, 279, 282, 289, 290, S13; § 32, § 33, 480. See also Treasury. Seditions. See Immoral works. Seizure, 22, 196, 268, 272, 273, 274, 279, 282, 283, 296, 319, 322, 328, 329, 334, 337, 389, 409, 424, 514, 523; § 32, 480; E. § 7, § 9, 523; § II, S24; § 14, S2S, S49> SSo. SS3; C. §9, S6i; § 13, S62; § 14, 563; § IS. S64; § 21, s66; Au. § 49, § so, 592; § 52, 593; § S3, S94; § S6, S96; § 61, S97; I- 616, 618; P. 640, 652. See also Forfeiture. Selections. See Extracts, Quotations. Sell, right to. See Sale. Senate. See Congressional, Ratification, also names of Senators. Serial publication, 47, 87, 120, 318, 322, 328, 439; R- § 6, 497; E. § IS (7), 527; I- 611; P. 638, s6o. Sermons. See Oral work. Servia, 414. Seymour, E: 351. Shadow-trick noncopr., 242. Shanghai, 417. Share Certificate Book, in re (1908), 150. "Shaughraun" case, 149. Sheet, 69, 70, 2S4, 288; R. § 4, 496; E. § is (7), S27; Au. § 4, s8o. Sheldon, Isaac E., 350. Shepard v. Taylor (1911), 258. Shepley, J., 82, 8s. Sherman, J:, bill (1872), 3S2, 363. Shiras, Justice, 54. Shorthand reproduction, 68, 70, 254. Siam, 42, 62, 124, 152, 160, 323, 417. Signature of artist 7, 390. See also Name. Sierra Leone, 397. Similarity, 173, 255, 260, 263, 326. Simonds, W. E. (1890), 362. Simultaneous publication, 109, 148, 150, 160, 327, 333, 337, 376, 387, 393; E. § 35 (3). S43; C. § 2 (3), 5S7; Au. § s, 581; § 13, § 14, § IS. S84; I- 607; P. 638, 650. See also First publication. Singapore, 39s. Situations, 171, 173, 174. 176. igi- See also Dramatic work. Sketch, 136, IS2, 176, 248, 250, 264, 326, 333, 376; E. § 2, S18; C. § 4, SS8; I. 604, P. 634, 637, 649. See also Artistic, Dra- matic, Musical work. Slater, J. H., 233, 458. Sleight-of-hand, not dramatic work, 163; R. § 8, 497- "Sleuth" cases, 261. Slingsby 11. Bradford Co. (1905), 258. Smithsonian Institution, 36, 301. Smoot, Senator, bill (1907-08, '09), 370, 371- Snow V. Laird (1900), 245. Snow II. Mast (1895), 130. Social Register Association v. Howard (1894}, 262. SocUlS des gens de lettres, 314. SocUU des gens de lettres v. Egyptian Gazette (1889), 419. Societal Italiana d. Autori v. Gramophone Co. of London (1906), 213. Societies, importation by, 281, 290; § 31 (d), 479; C. § 17, 56$. See also Publications of. Solberg, Thorvald, 308, 324, 366, 367, 453, 4SS- See also Register of copyrights. Songs, 71, 82, 86, 163, 167, 168, 17s, 176, 191, 206, 208; R. § 4, 496; § 9, 497; § 10, 498. See also Dramatic, Dramatico- musical, Lyrical work. Sosius brothers, 8. Source, acknowledgement of, 322, 328, 333, 337; I- 612; P. 634, 639, 651. Sousa, 220. South African Union, 321, 375, 381, 382, 396; E. § 3S, S43- See also British Em- pire. South America. See Latin America. South Australia. See Australia. South Carolina copr. legislation, 35. Southey v. Sherwood (1817), 86. Spain, 62, 94, 112, 124, 152, 198, 317, 318, 320, 323, 330, 331, 410, 461, 489, 636. Speech. See Oral work. Spencer, Herbert, so, 351, 4S7- Speyer, J: of, 13. Spofford, A. R., 297. Sporting tips, noncopr., 70. Springer Lith. Co. v. Falk (1894), 244. Stab, Johann, 11. Stage effects, 162, 173, 198, 326; R. § 8, 497; I. 603. See also Dramatic, Scenic. 7o6 INDEX Stall, Dr. Sylvanus, 288. Stannard v. Harrison (1871), 239. Star Chamber decree, 21. Star maps copr., 223; R. § 11, 498. State legislation, 33, 35, 39, 194, 366, 391, 392; Au. § 4, 581; § 8, 582; § 12, 583. State courts. See Court. Stationers' Company, 15, 21; Hall, 22, 24, ISO, 184, 189, 190, 246, 310, 312, 374. Statistics copr., 69. Statue, 66, 245, 266, 267; § 25 (b), 476; Au. § 41, 590. See also Artistic work, Sculp- ture. Statute law, 2, 6,7, 22, 24-41. See also speci- fic references, Anne, Common law, etc. Statute law revision act, 27. Statutory forms, copr., 69. Stedman, E. C, 348, 359. Stephen, Sir James, 30, 183, 435, 4S6. 4S9- Stereotype, E. § 3s (i), 543; C. § 2, 556. See also Plates. Stem V. Remick (1910), 127, 130. Stem V. Rosey (1901), 205. Steuart, Arthur, 46, 371. Stevens v. Benning (1854), 444. Stevenson, Archer, 350. Stone, E. § 35 (i), S43; C. § 2, 556. See also Lithographs, Plates. Stone V. Long (1903), 442. Storm, J. B., 350. Story, J., 92, 252. Story V. Holcombe (1847), 81. Stowe V. Thomas (1833), 77. Straits Settlements, 395. Strasburg, 11. Straus V. American Pub. Assoc. (1904, '08), 57- Structure noncopr., E. § 35, 542; C. § 2, 555; § 10, 562. See also Architecture, works of. Subject-matter of copr., 12, 63-94, 223, 224, 318, 321, 326, 379, 387. 392; §§ 4-7, 467, 468; R. §§4-16,496-99; E. §35,542; C. § 2, 555; Au. § 4, 580; I. 603-06, 610; P- 633, 637, 649. Subject. See Citizenship, Foreign, Residence, Subsisting copr. See Existing copr., Exten- sion, Renewal, Term. Substantial importance, 73. Substituted rights. See Rights, Schedules. Substitution of name. See Name, Notice. Sugden, Sir E: 445. Suits, 24, 26, 36, 46, 122, 143, 150, 266, 269- 77, 283, 319, 373, 374, 386, 396, 399, 416, 438, 491-94; §i2i 470; § 27,477; §§ 34-40, 481-82; § 63, 488; R. § 3, 49s; E. § 7, 523, S49. SS^; Au. § 48, 592; § 74, 600; I. 607, 617. 566 also Costs, Damages, Infringe- ment, Limitation, Penalties, Punishment, Remedies, etc. Sulzer, W: bill (1908, '09), 370. Summary proceedings, E. §§ 11-13, 524-25, 549; C. § 13, 562; Au. §§ 45-61, 591-98. See also Penalties, Remedies, Seiziue. Sumner, C: 347. Sumner, T: H., 38, 121. Superintendent of pub. docs., 300, 305; § 57, 485. Suppression of books, Au. § 77, 601. See also License, Republish. Supreme Court, U. S. See Coxirt jurisdic- tion, Regulations. Sweden, 112, 124, 200, 248, 316, 317, 321, 323, 330> 340, 368, 407, 490- Sweet V. Cater (1841), 444. Swift, 23, 92. Switzerland, iii, 124, 199, 214, 316, 317, 318, 320, 323, 330, 406, 489; I. 622. Synopsis, insufficient, R. § 18, 500. iSe6 also Abridgment. System. See Arrangement, Schemes. Tableaux vivants, 162, 241; R. § 8, 497. Tabulations, 69, 70; R. § 4, 496; E. § 15 (7), 527; C. §2, 555; §3 (2), 558. Talfourd, Serjeant, 28, 456. Tariff. See Customs. Tasmania, 381. See also Australia. Tate V. Fullbrook (1908), 176. Tauchnitz series, 293. Taylor v. Pillow (1869), 446. Taxation, 47, 452. Telegraph codes, 70; messages, 88, 93, 94, 124. 394, 396, 406, 410. Temporary copr., 387-90; C. § 23, 568. See also Interim. Terence, 8. Term, 7, 35, 51, 114-24, 134, 180; § 9, 469; § 23, 474; § 24, 475; anonymous and pseu. INDEX 707 donymous works, loi, 328; 1. 610; artistic work, 230, 245-49. 374-429; Au. § 36, 39°; collective work; C. § 30, 569; com- mencement, 119, 120, 318, 333, 377; § 9, 469; E. § 19, 529; C. § 31, s7o; Au. § 16, S8s; I. 611; P. 638, 650; dramatic and musical, 183, 188, 200; dramatization, 58, 169; early provisions, 11-19, 24, 27, 28, 35; government publications, 123, 377, 398, 410, 412, 420; E. § 18, 329; in British Do- minions, 33, 121-23, 373-97; E. § 3, S2o; C- § S, SS9; Au. § 17, 585; § 35, S9i; in other countries, 121, 122, 398-429; inte- rim protection, 146; § 21, § 22; R. § 28; international, 124, 188, 318, 327, 328, 329, 331. 333, 33S. 337; E. § 29, 539; C. § 35, 573; I- 607, 609, 631; P. 633, 638, 644, 650; joint authors, 120, 122, 137, 188, 377, 387; E. § 16, S28; C. § 29, 569; Au. § 17, s8s; limitation of assignments, 61, 113, 377, 378; E. § 5, 521; § 24, 534; C. § 7, s6o; § 33. S7i> oral work, 119, 401; periodical contributions, 28, 104, 115; § 23, 474; pho- tographs, 122, 247, 248, 328, 377, 394, 403, 406, 407, 409, 416, 417; E. § 21, S33; C.§ 31, 570; 1. 610; posthumous work, 122, 328, 377; § 23, 474; E. § 17, 529; C. § 28, 569; Au. § 17, 585; I. 610; mechanical records; E. § 19, 529; C. § 31, 57°; subsist- ing works, 377; E. § 24, S34; successive parts 120, 318, 333; I. 610; P. 638, 650; translation, 58, 78, 318; Au. § 30, 588; I. 610; unpublished work, 119, 179, 180, 230. See also Extension, Notice, Perpe- tuity, Renewal. Theatre, unlawful use, 193, 394; E. § 2, 520; C. § 4. SS9; Au. § 51, S93- See also Dra- matic work. Infringement, party liable. License. Thomas v. Lennon (1883), 187. Thompsons. Amer. Law Bk. Co.(i903), 258. Thompson v. Stanhope (1774), 92. Thornton, Sir E:, 349, 356. Thring, G. H., 457- Ticker tape news, 89. Ticket, railway, noncopr., 70. Tillinghast, J. L., 346. Time-tables copr., 70. Times (London) case, go. Times (N. Y.), Peary copr., 89, 102. Tinsley v. Lacy (1863), 173. Title, 12, 82, 86, 88, 94, 138, 171, 173, 191, 260, 261, 416, 428; conformity of, 137, 192, 261; R. § 29, S02; § 30, S03; registra- tion; 37, 86, 136, 304, 390, 396; § SS, 484; R- § 30, S03- See also Ownership. Title abstracts copr., 69. Topographic charts. See Maps. Toole V. Young (1874), 172. Tools noncopr., 72, 223; R. § 12, 498. Toy noncopr., 172, 223; R. § 12, 498; sol- diers, protected, 247. Trade-mark, 75, 99, 223, 237, 263, 386; R. § 16, 499; acts, 40, 83; C. § 32, s7o; title as, 83, 88. See also Title. Trade-name, 102; R. § 24, 501. Trading stamps noncopr., 70. Transcriptions, 45, 169, 170, 198. See also Musical work. Transfer of copr. See Assignment, Owner- ship; also Lithograph. Translate, right to, 42, 45, 47, 58, 61, 78, 124, 146, 170, 322, 328, 333, 392, 417; § I (b), 46s; E. § I, S18; § 29, 539; C. § 2, 556; Au. § 13, 584; § 30, § 31, 588; I. 60s, 610, 612, 620; P. 633, 634, 637, 639, 649, 650; British Umitation, 78; in other countries, 398-429. Translations, 29, 64, 77-80, 155, 159, 288, 318, 319, 321, 326, 333, 337, 438; § 6, 468; E. § I (2), S18; C. § 35, 573; Au. § 28, 587; § 29, 588; I. 604, 613; P. 634, 639, 650; in other countries, 78, 397-429. See also Dramatization, Foreign works, Notice of reservation. Transpositions, 170, 198, 392; R. § 10, 170; Au. § 13, 584. See also Musical work. Transvaal, 160, 397. See also South African Union. Treasury decisions, 168, 283-88, 291. See also Regulations, Secretary of the Treas- ury. Treaties, 111, 202, 295, 312, 313, 319, 329, 339, 347, 349; § I (e), 466; I. 620. See also International conventions, Proclamations, names of countries. Tree v. Bowkett (1896), 174. Trengrouse v. "Sol" Syndicate (1901), 254. 7o8 INDEX Trevers, Peter, 21. Tribonian, 8. "Trilby" cases, 82, 171, 174. Trinidad, 391. Trinity College. See University deposit. Trotting records copr., 70. Tucker, J. R., bill (1886), 359. Tunis, 198, 214, 316, 318, 320, 323, 330, 397, 398, 418. Turkey, 415. Turner v. Robinson (i860), 232. Twain, Mark, see Clemens, S. L. Tjrpe, forms of, noncopr., 224; R. § 16, 499. l^pe setting. 5ee Manufacturing pro- visions. Typewritten deposit, 143; R. § 18, 499; C. § 26, s68. Typographical unions, 156, 158, 358, 361, 363- Unauthorized publication. See Consent, Infringement, Seizure, etc. Uncopyrightable matter. See Non-copy- right. Underselling. 5ee Price, limitation of. Unfair competition, 85, 192, 260, 262, 263. See also Fair use, Infringement, Title. United Book Co. See Fraser v. Yack. United Dictionary Co. v. Merriam (1908), 134- United States copr. history and laws, 35-41, 341-72; scope, 42-61; subject-matter, 63- 93; ownership, 95-112; term, 114-210; formalities, 125-50; manufacturing pro- visions, 153-59; dramatic and musical, 162-95 ; mechanical reproduction, 202-21; artistic, 222-46; infringement, 251-64; remedies, 265-77; importation, 278-92; copr. office, 297-310; duties, 288-90; in- ternational, 112, 212, 317, 318, 323, 324, 32s, 332> 334, 337, 339. 42o; internat. movement, 341-72; literature, 453-56; code of 1909, 465-88; proclamations, 489- 90; Supreme Court rules, 491-94; Copr. Office regulations, 495-510; Application form, 511-12; Treasury and P. O. regu- lations, 513-16. See also Constitution, Court jurisdiction, Regulations and spe- cific subjects. University copr., 24, 26, 123, 377, 380; E. § 33, S4i; act (177s), 26, 27; E. § 33, 541; deposit, 22, ISO, 151, 374, 378; E. § 15 (2), (4), 527; of Oxford, 19; of Padua, IS, 16; of Paris, 9, 17. Unpublished work, 4, 25, 44-48, 61, 86, 113, 166, 180, 187, 225, 227, 238; § 2,467; § II, 470; R. § 17-21, 499-500; I. 603; deposit, 144, 226,412; § II, 470; R. § 18-20, 499- 500; dramatic and musical work, 119, 165, 179, 187; I. 613; in British Empire, 61, iSi, 182, 375, 379, 387, 392; E. § 1, S17; § 16 (2), 528; § 31, 541; § 3S (4), 544; C. § 2, 556; § 26, 568; Au. § 7, 582; not asset in bankruptcy, 452; registration, 144, 145, 179; § ", 470; R. § 21, 500; term, 119, 179, 230; title, 85. See also Manuscript, Oral work. Unrecognized authorship, 427, 428. Uruguay, 62, 124, 323, 331, 332, 426. Use. 5ee Fair use. Limitation, Private Van Dyke, H:, 360, 454. Van Nostrand, D., 350. Variations, 170, 198. 5ee also Musical work; also Title. Vend, right to. 5ee Sale. Venetia imprint, 16. Venezuela, 124, 323, 429. Venice, 13. Verification, unfair use for, 255. Verlagsrecitt, getheiltes, 46. Version, right to make, 42, 45, 58, 80, 170- 73; § I (b), 46s. 5ee also Translations, etc. Vevey literary congress (1901), 209. Victor Talking Machine Co. v. The Fair (1903), so. Victoria, Queen, 238. Victoria. See Australia. Vienna literary congress (1881), 314. Virginia copr. legislation, 35. Vocal work. See Dramatico-musical, Musi- cal work. Voiding of copr. See Forfeiture. Volumes, Separate, 132, 306, 318; § 61, 488; I. 611; P. 638, 650. Vouchers, 72. See also Forms. INDEX 709 Wage tables copr., 70; R. § 4, 496. Wagner v. Conried (1903), 181. Wales, National lib. deposit; E. § 15, 527. See also British. Walker v. Globe. See Globe v. Walker. Walpole's "Castle of Otranto," 87. Walter v. Lane (1900), 68. Walter v. SteinkopfE (1892), 89, 259. Ward V. Beeton (1875), 445. Ward, Lock & Co. v. Long (1906), 441. Wame v. Routledge (1874), 445. Wame v. Seebohm (1888), 173. Warrants. See Search. Washbum, C. G., bills (1908, '09), 44, 370, 371- Webster, Noah, 35, 344. Webster Dictionary cases, 261. Weldon v. Dicks (1878), 83. Welsh, James, 361. Werckmeister v. American Lithograph Com- pany, (1902), 23s; (1904) 23s; (1907) 225, 232; V. Springer Lithograph Com- pany, (1894), 234. West Pub. Co. V. Lawyers' Pub. Co. (1894, '97), 258. West Pub. Co. V. Thompson Co. (1897), 258, (1910), 132, 259. Western Australia. See Australia. Western Union Tel. Co. v. Call Pub. Co. (190X), 44. Wheaton v. Peters (1834), 40, 41, 44, 149. Wheeler v. Cobbey (1895), 272. White, R: Grant, 454. White V. Bender (191 1), 257. White-Smith v. Apollo Co. (1906, '08), 54, 204. White-Smith v. GofE (1910), 116. Widow, widower. See Heirs. Will. See Heirs. Willfully. See Intent, Knowledge. William IV, 27. Wilson, James Grant, 355. Winchester, Boyd, 317. Winslow, Reginald, 439. Wisconsin copr. legislation, 39, 194. Withholding of work. See Publication, en- forced, Republish. Witnessing, 106, 389. Woman, married, E. § 16 (4), 529. Wood-cuts, 8, 98, 223; R. 1 13, 498; E. §3S, 542; C. § 2, ssSi Au. § 4, 580. See also Engravings. Wooster v. Crane (1906), 442. Words, 75, 85, 130, 262; for music, 70, 121, 188, 326; R. § 4, 496; R. § 10, 498; E. § 19(2), 530. See also Dramatic, Dramatico- musical. Musical works. Title. Woven fabrics noncopr., 223; R. § 12, 470. Wrappers, 71; R- § S. 496- Wright, Carroll D., 456. Wright V. Eisle (1903), 242. Writ of error, 269, 272; § 38, 481. Writings, 35, 64, 66, 94, 215, 326, 410; § 4, 467; I. 603; P. 633, 649. Wynken de Worde, 21. Year book, E. § 35 (i), 542; C. § 30. $69. Young, J: Russell, 96. CAMBRIDGE . MASSACHUSETTS U . S . A KF 2994 B78 Author Vol. Bowker, Richard Rogers ,- 1 "^'"^ copyright its history and '^°^^ its law.