Copyright: Its History and Its Law
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Title: Copyright: Its History and Its Law
Author: R. R. Bowker
Release date: April 21, 2012 [eBook #39502]
Language: English
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Richard Rogers Bowker
COPYRIGHT: ITS HISTORY AND ITS LAW.
THE ARTS OF LIFE.
OF BUSINESS.
OF POLITICS.
OF RELIGION.
OF EDUCATION.
HOUGHTON MIFFLIN COMPANY
BOSTON AND NEW YORK
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 1911
BY
RICHARD ROGERS BOWKER
BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
The Riverside Press Cambridge
1912
COPYRIGHT, 1912, BY R. R. BOWKER
ALL RIGHTS RESERVED
FOR ALL COUNTRIES
_Published March 1912_
FOREWORD
{Sidenote: Copyright progress}
The American copyright code of 1909, comprehensively replacing all previous
laws, a gratifying advance in legislation despite its serious restrictions
and minor defects, places American copyright practice on a new basis. The
new British code, brought before Parliament in 1910, and finally adopted in
December, 1911, to be effective July 1, 1912, marks a like forward 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 independently, Australia
had already adopted in 1905 a complete new code, and Canada is following
its example in the measure proposed in 1911, which will probably be
conformed to the new British code for passage in 1912. Portugal has already
in 1911 joined the family of nations by adherence to the Berlin convention,
Russia has shaped and Holland is shaping domestic legislation to the same
end, and even China in 1910 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 1910, which the United States has
already ratified, made a new basis for copyright protection throughout the
Pan American Union, both freeing authors from formalities beyond those
required in the country of origin. Thus the American dream of 1838 of "a
universal republic of letters whose foundation shall be one just law" is
well on the way toward realization.
{Sidenote: Field for the present treatise}
In this new stage of copyright development, a comprehensive work on
copyright seemed desirable, especially with reference to the new American
code. Neither Eaton S. Drone nor George Haven Putnam were disposed to enter
upon the task, which has therefore fallen to the present writer. He hopes
that his participation for the last twenty-five years in copyright
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 coordinating factors in the making
of books and other forms of intellectual property.
{Sidenote: Authorities and acknowledgments}
The present work includes some of the historical material of the
Bowker-Solberg volume of 1886, "Copyright, its law and its literature."
This material 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 practically, and in
other respects entirely new. It has had the advantage of the cordial
co-operation of the copyright authorities at Washington, especially the
Librarian 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. Ritchie, and of Prof. Ernest
Roethlisberger, editor of the _Droit d'Auteur_, and one of the best
authorities on international copyright. This acknowledgment of obligation
is not to be taken as assuming for the work official sanction and
authority, though so far as practicable, 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, Colles and Hardy, and MacGillivray, to whom
acknowledgment is made in the several chapters. Acknowledgment is also made
for the courtesies of Sir Frederick Macmillan, G. Herbert Thring, secretary
of the British Society of Authors, and others numerous beyond naming. But
most of all the writer is indebted to the intelligent and capable
helpfulness of Carl L. Jellinghaus, who as private secretary, has been both
right hand and eyes to the writer, and besides participating in the work of
research, is largely responsible for the index and other "equipment" of the
volume.
{Sidenote: Method and form}
Copyright law is exceptionally confused and confusing, 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 endeavor to concentrate the main discussion in one place,
designated in the index by black face figures, with subordinate references
in other chapters. Ambiguities in the text of this volume often reflect
ambiguities in the laws, particularly of foreign countries. Where acts,
decisions, etc., are quoted in the text or given in the appendix, spelling,
capitalization, punctuation, headings, etc., follow usually the respective
forms, thus involving apparent inconsistencies. Side-headings in the
appendix follow usually the official form, unless shortened to prevent
displacement. Translations of foreign conventions follow usually the
official text of the translation, but have been corrected or conformed in
case of evident error or variance. Citation of cases is confined for the
most part to ruling or recent cases or those of historic importance or
interest. Though it has not been practicable to verify statements from the
copyright laws of so many countries in divers languages, a fairly
comprehensive and accurate statement of the _status_ of copyright
throughout the world is here presented. The present work, originally
planned for publication in 1910, has been held back and alterations and
insertions made to bring the record of legislation to the close of 1911.
For those who wish to keep their copyright knowledge up to date, the
_Publishers' Weekly_ will endeavor to present information as to the English
speaking world, and the monthly issues of the _Droit d'Auteur_ of Berne,
under the editorship of Prof. Roethlisberger, will be found a comprehensive
and adequate guide.
{Sidenote: Advocates of authors' rights}
The preparation of this work brings a recurring sense of the losses which
the copyright cause has suffered during the long campaign for copyright
reform, beginning in the American Copyright League, under the presidency of
James Russell Lowell, and continued under that of Edmund Clarence Stedman,
both of whom have passed over to the majority. Bronson Howard, always
active in the counsels of the League as a vice-president, and the foremost
advocate of dramatic copyright as president of the American 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 ardent advocates of the
rights of the author, gave large 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 active 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.
{Sidenote: Copyright evolution}
It may be noted that while throughout the British Empire English precedent
is naturally followed, the more restrictive American copyright system has
unfortunately influenced legislation in Canada and Newfoundland, and in
Australia. France, open-handed to authors of other countries, has afforded
precedent for the widest international protection and for the international
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 legislation, and this has been closely followed in
the Buenos 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 cognate to
other property, for a term indefinite and in a sense perpetual, almost
impossible of enforcement 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 comprehensive codes giving wide and
definite protection for all classes of intellectual property for a term of
years extending beyond life, with the least possible formalities compatible
with the necessities of legal procedure. Unfortunately in the United States
of America the forward movement which produced the "international 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 abandoned, as the friends of copyright hope may
ultimately 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, 1911.
POSTSCRIPT. Since this book has been passing through the press, Cuba has
been added to the countries in reciprocal relations with the United States
with respect to mechanical music by the President's proclamation of
November 27, 1911; Russia has made with France its first copyright treaty,
in conformity with the new Russian code of 1911; 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, 1911, as noted on p. 374. The text of the act in the appendix
follows 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 Page xi
Under the names of countries are given dates of the basic and latest
amendatory laws. International relations are shown by the name in SMALL
CAPS of the convention city when 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 copyright 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,
1908 (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, 1886, and the Paris
additional act and interpretative declaration, 1896, Denmark, Italy; (C)
under the Berne convention, 1886, and the Paris additional act, 1896, Great
Britain; (D) under the Berne convention, 1886, and the Paris interpretative
declaration, 1896, Sweden. The Pan American conventions agreed on at Mexico
City, 1902, 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 doubtfully by Cuba and
Dominican Republic; that of Rio by a few states insufficient to make it
anywhere 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 convention
through their Washington treaty of peace of 1907.
---------------------------------------------------------------------------
Countries | International | | Registration| |
Dates of laws| relations | Duration| and Deposit | Notice | Remarks
--------------+-----------------+---------+-------------+---------+--------
{Sidenote: North America: English}
North America | | | | |
(ENGLISH- | | | | |
SPEAKING) | | | | |
United States |MEXICO, B. AIRES,| 28 + 28 |Library of |"Copy |Manufac-
1909 |Gt. Brit., Belg.,| |Congress (2 |-right, |ture
|China, Den., Fr.,| |"promptly") |19--, by |within
|Ger., It., Jap., | | |A. B." or|U. S. for
|Lux., Nor., Sp., | | |statutory|books,
|Swe., Switz., | | |equiva- |etc.
|Aust., Hol., | | |lent |
|Port., Chile, | | | |
|Costa R., Cuba, | | | |
|Mex. | | | |
Canada |_See_ Gt. Brit. | 28 + 14 |Dept. of |"Copy- |Printing
1875-1908 |(Aus.-Hung. | |Agriculture: |right, |and publ.
[1912 ?] |excepted) | |Copyright |Canada |within
| | |Branch (3) |19--, by |Canada.*
| | | |A. B." or|
| | | |signature|
| | | |of artist|
Newfoundland |_See_ Gt. Brit. | 28 + 14 |Colonial |"Entered,|Printing
1890-1899 | | |Sec. (2) |Newf.... |and publ.
| | | |by A. B."|within
| | | |etc. or |Newf.*
| | | |signature|
| | | |of artist|
Canal Zone | | | | |
(U. S.) |_See_ U. S. | | | |
Porto Rico | | | | |
(U. S.) |_See_ U. S. | | | |
Jamaica (Br.) |_See_ Gt. Brit. | Life + 7|(3 or 1* | None |
1887 | | or 42* |within mo.) | |
Trinidad (Br.)|_See_ Gt. Brit. | Life + 7|Registrar of | None |
1888 | | or 42* |copyright (3 | |
| | | within mo.) | |
{Sidenote: Europe: English}
Europe | | | | |
Great Britain |BERNE-PARIS A | Life + 7|R Stationers | None* |First or
& Ireland |U. S., Aus.- | or 42* |Hall (before | |simulta-
D 1842-1906 |Hung.* | [Life + |suit)* | [None] |neous pub-
I 1844-1886 | | 50*] |D British | |lication
| | |Museum (1) | |
[1911] | | |+ 4 library |[No reg- |[In
| | |copies (on |istra- | effect
| | |demand)* |tion] |1912]
Isle of Man |_See_ Gt. Brit. | | | |
1907 | | | | |
Channel Isles |_See_ Gt. Brit. | | | |
{Sidenote: French}
France |BERLIN* MONTV.* |Life |D Ministry | None |
1793-1910 |U. S., Aus-Hung.,| + 50* |of Interior | |
|Hol., Port., | |or prefecture| |
|Mont., Roum., | |(2 before | |
|Lat. Amer. | |suit)* | |
Belgium |BERLIN, MONTV.* |Life + 50| None* | None* |
1886 |U. S., Aus., | | | |
|Hol., Port., | | | |
|Roum., Mex. | | | |
Luxemburg |BERLIN |Life | None* | None* |
1898 |U. S. |+ 50* | | (res. |
| | | | playr.)|
Holland |U. S., Belg., | 50 or |Dept. of | None* |Printing
1881 |Fr. | life* |Justice (2 | (res. |within
[1912?] | | |within mo.) | trans. |Holland
| | | | playr.) |
{Sidenote: German}
Germany |BERLIN | Life | None* | None* |
1901-1910 |U. S., Aus.-Hung.| + 30* | | |
Austria |Hung., U. S., | Life | None* | None* |
1895, 1907 |Gt. Brit.,* Belg.| + 30* | |(res. |
|Den, Fr., Ger., | | | trans. |
|It., Roum., Swed.| | | photos, |
| | | | mus.) |
Hungary |Aust., Gt. | Life | None* | None* |
1884 |Brit.,*Fr., Ger.,| + 50* | | (res. |
|It. | | | trans. |
| | | | photos) |
{Sidenote: Scandinavian}
Switzerland |BERLIN | Life |R. Office of | None* |
1874, 1883 |U. S. | + 30* |Intel. Prop. | (res. |
| | |optional* | playr.) |
Denmark |BERNE-PARIS | Life | None* | None* |
1865-1911 |U. S., Aus. | + 50* | |(photos, |
| | | | res. |
| | | | music) |
Iceland (Den.)|_See_ Denmark | | | |As in
1905 | | | | |Denmark
Norway |BERLIN* |Life | None* | None* |
1877-1910 |U. S. | + 50* | |(photos, |
| | | | res. |
| | | | music) |
Sweden |BERNE-PARIS D |Life | None | None* |
1897-1908 |U. S., Aus. | + 50* | |(photos, |
| | | | res. |
| | | | playr.) |
{Sidenote: Russian}
Russia |France | Life | | None* |
1911 | | + 50* | |(photos, |
| | | | res. |
| | | | trans. |
| | | | mus.) |
Finland | None | Life | None* | None* |
1880 | | + 50* | | |
{Sidenote: Southern}
Spain |BERLIN, MONTV.* | Life |Register of | None* |Special
1879-1896 |U. S., Port., | + 80* |Intel. Prop. | |provisions
|Lat. Amer. | |(3 within | |
| | |one year*) | |
Portugal |BERLIN | Life |Pub. Lib.* | None |
1867, 1886 |U. S., It., Sp., | + 50* |(2 before | |
|Bra. | |pub.) | |
Italy |BERNE-PARIS |Life or |Prefecture | None* |Added
1882, 1889, |MONTV.* | 40* |(3 within |(res. |40 yrs. on
1910 |U. S., Aus.- | + 40* |3 months)* |trans.) |royalty of
|Hung., Mont., | | | |5 p. c.
|Port., Roum., | | | |
|San. Mar., | | | |
|Lat. Amer. | | | |
{Sidenote: Europe: Minor States}
San Marino |_See_ Italy | | | |As in
Monaco |BERLIN |Life + | None | None* | Italy
1889, 1896 | | 50* | | |
Greece | None | 15 + * |D (4 within | |
1833-1910 | | |10 days*) | |
Malta, Cyprus,|_See_ Gt. Brit. |Life + 7 |D (3 within | |
etc. (Br.) | |or 42* |mo.) | |
{Sidenote: Balkan States}
Montenegro |Fr., It. | | | |Uncertain
| | | | |protection
Bulgaria | | | | |Uncertain
1896? | | | | |protection
Servia | | | | |No
| | | | |protection
Roumania |Aus., Belg., Fr.,|Life + 10|R. Min. of | |
1862-1904 |It. | |Instruc. | |
Turkey | None |Life + |Min. of Pub. | None. |
1910 | | 30* |Instruc. (3)*| |
{Sidenote: Asia}
Asia | | | | |
Japan |BERLIN* |Life + |R. Ministry | None* |
1899, 1910 |U. S.,* China | 30* |of Int. | |
| | |(before suit)| |
Korea |_See_ Japan | | | |As in
1908 | | | | | Japan
China |U. S.,* Japan |Life + |Ministry of | |
1910 | | 30* |Int. (2) | |
Hong Kong |_See_ Gt. Brit. |Life + 7 |D (3 within | |
(Br.) | |or 42* |mo.) | |
Philippines |_See_ U. S. | | | |
(U. S.) | | | | |
India, British|_See_ Gt. Brit. |Life + 7 |D (3 |Printer's|
1847, 1867 | |or 42* |within mo.) |and pub- |
| | | |lisher's |
| | | |name on |
| | | |work |
Ceylon, etc. |_See_ Gt. Brit. |Life + 7 |D (3 within | |
(Br.) | |or 42* |mo.) (4 | |
| | |within yr.) | |
Siam | None |Life + 7 | | |
1901 | |or 42* | | |
Persia | None | | | |No pro-
| | | | | tection
{Sidenote: Africa}
Africa | | | | |
Egypt | None |Indef- | | |Court pro-
| | inite | | | tection
Tunis |BERLIN* |Life + | | |As in
1889 | | 50* | | | France
Algeria (Fr.) |_See_ France | | | |
Sierra Leone, |_See_ Gt. Brit. |Life + 7 |D (3)* | |
etc (Br.) | |or 42* | | |
1887 | | | | |
Liberia |BERLIN |Indef- | | |Without
| |inite | | |specific
| | | | |law
Congo Free |Belg., Fr. | | | |Punishes
State |(extradition) | | | |fraud only
So. Africa |_See_ Gr. Brit.* | | | |
(Br.) |Aus.-Hung., | | | |
|excepted | | | |
Cape Colony | |Life + 5 |Registrar of | |
1873-1895 | |or 30* |Deeds | |
| | |D (4 within | |
| | |mo.)* | |
Natal | |Life + 7 |Colonial | |
1895-1898 | |or 42* |Sec., D (2 | |
| | |within 3 | |
| | |mos.)* | |
Transvaal, | |50 or |Registrator | Reserv. |Printing
etc. 1887 | |life* |D (3 within | of |within
| | |2 mos.)* | playr. |colony*
| | | | and |
| | | | trans. |
{Sidenote: America, Latin: Mexico Central America}
Latin America | | | | |
Mexico |U. S., Dom. Rep.,|Perpetu- |R. Min. | None* |
1871, 1884 | Ecu., Belg., |ity* |Pub. Instruc.|(res. |
|Fr., It., Sp. | |D (2)* |trans.) |
Costa Rica |MEXICO |Life + |Office of | None |
1880-1896 |U. S., Sp., Fr. |50* |Pub. Libs. | |
|Guat., Sal., Hon.| |(3)* | |
| | |within yr.* | |
Guatemala |MEXICO |Perpetu- |Min. of Pub. |(res. |
1879 |Sp., Fr., |ity |Educ. |trans.) |
|Costa R. | |(4)* | |
Honduras |MEXICO |Indef- | | |No speci-
1894, 1898 |Costa R. | inite | | |fic law
Nicaragua |MEXICO |Perpetu- |Min. of |(res. |
1904 | It. |ity* |Agric. (6*) |trans.) |
Salvador |MEXICO |Life + |D Min. of | None |Publi-
1886, 1900 |Sp., Fr., |25* |Agric. | |cation
|Costa R. | |(1 before | |within
| | |pub.) | |country
Panama | None |Life + 80| | |As in
1904 | | | | |Colombia
{Sidenote: West Indies}
Cuba |MEXICO? |Life + |Dept. of | None |
1879-1909 |U. S., It. | 80* |State (3) | |
Haiti |BERLIN |Life + * |D Dept. of | None |
1885 | | |Int., (5 | |
| | |within yr.) | |
Dominican Rep.|MEXICO? Mex. |Uncertain| | |
1896 | | | | |
{Sidenote: South America}
Brazil |Portugal |50* from |Nat. Lib. (1 | None* |
1891-1901 | |the 1st |within 2 |(res. |
| |Jan. of | yrs.) |playr.) |
| |yr. of | | |
| |pub. | | |
Argentina |MONTEVIDEO |Life + |Nat. Lib. | None* |
1910 |Belg., Sp., Fr., |10* |(2 within 15 | |
|It. | |or 30 days) | |
Uruguay |MONTEVIDEO |Indefin- | | |No speci-
1868 | |ite | | |fic law
Paraguay 1870,|MONTEVIDEO Belg.,| |Public | |Under
1881, 1910 | Sp., Fr., It. | |registries | |penal code
Chile |U. S. |Life + 5*|D Nat. Pub. | None |
1833-1874 | | |Lib. (3)* | |
Peru |MONTEVIDEO |Life + |D Pub. Lib. | None |
1849, 1860 | |20* |(1) + Dept. | |
| | |Pref. (1) | |
Bolivia |MONTEVIDEO |Life + |R Min. of | |
1834, 1909 |Fr. | 30* |Pub. Instruc.| |
| | |D Pub. Lib. | |
| | |(1 within | |
| | | yr.) | |
Ecuador |Sp., Fr., Mex. |Life + |Min. of | None* |
1884, 1887 | | 50* |Pub. Educ. |(res. |
| | |(3 within 6 |playr.) |
| | |mos.)* | |
Colombia |Sp., It. |Life + |Min. of | None |
1886, 1890 | | 80* |Pub. Educ. | |
| | |(3 within | |
| | |yr.)* | |
Venezuela | None. |Perpetu- |Registry (6) |Notice of|
1894, 1897 | |ity | |patent |
{Sidenote: Australasia}
Australasia | | | | |
Australia |_See_ Gt. Brit.* |Life + 7 |Commonwealth |Reserv. |
(Br.) 1905 |Aus.-Hung. |or 42* |Copyr. Office| per- |
|excepted | |D (2) | forming |
New Zealand |_See_ Gt. Brit. |28 or |R Registrar | right |
(Br.) | | life* |of Coprs.* D | |
1842-1903 | | |libr. of Gen.| |
| | |Assem. (for | |
| | |plays only) | |
Hawaii (U. S.)|_See_ U. S. | | | |
---------------------------------------------------------------------------
CONTENTS Page xv
PART I
NATURE AND DEVELOPMENT OF COPYRIGHT
I. THE NATURE AND ORIGIN OF COPYRIGHT 1-7
Copyright meaning, 1--Its two senses, 1--Blackstone,
2--Property by creation, 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--Subsequent acts, 29--Royal Commission report of 1878,
30--Later legislation, 31--International copyright, 31--Musical
copyright, 31--Conference reports, 1909, 32--Act of 1911,
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 possessions, 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--Common law scope, 44--Common law in
U. S. practice, 44--Statutory limitations, 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 contracts, 48--Enforcement in limited
grants, 49--Copyright as monopoly, 50--Altered theory of
copyright, 52--Publishing, 52--What constitutes publishing,
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
copyrightable, 61--New British code, 61--Foreign statutes,
62--International provisions, 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 international relations, 79--Foreign translators,
79--Abridgments, 80--Compilations, 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, 91--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, 100--Separate registration of contributions,
100--Anonymous works, 101--Joint authorship, 101--Corporate
bodies, 102--Posthumous works, 102--Peary cases, 102--Renewal
rights, 104--Assignments, 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, 110--Foreign ownership, 111--"Proclaimed" countries,
111--Buenos Aires convention, 113--New British code,
113--Foreign practice, 113.
VIII. DURATION 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, 121--New
British code, 122--Perpetual copyright, 123--Other countries,
124--International standard term, 124--Special categories, 124.
IX. FORMALITIES OF COPYRIGHT: PUBLICATION, NOTICE, REGISTRATION
AND DEPOSIT 125-152
General principles, 125--Previous American requirements,
125--Present American 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--Application cards, 139--Certificate cards, 140--Fees,
141--Deposit, 142--Fragment not depositable, 143--Typewriting
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--Exception of
foreign illustrative subjects, 156--Affidavit requirement,
156--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 performance, 164--Performance "for profit,"
165--Works not reproduced, 166--Copyright notice,
166--Dramatico-musical works protected from mechanical
reproduction, 166--Dramatic and musical works excepted from
manufacturing provisions, 167--British colonial practice,
168--Entry under proper class, 168--Application 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--Indeterminate
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--Copyright term, 188--Registration, 189--Assignment,
189--Parody, 190--Infringement 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--Inscribed writings, 215--Direct
sound-writings, 216--Music transmissal, 216--Music notation,
217--The law prior to 1909, 218--Manuscript and copies,
218--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--Protection 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 unpublished work, 230--Date not
required, 230--Re-copyright objectionable, 231--Exhibition
right transfer, 231--Early English decision, 232--The
Werckmeister leading case, 233--Unrestricted exhibition
hazardous, 234--Reservation on sale, 234--Publication
construed, 234--Danger of forfeiture, 235--Limited use and
license, 236--Character, not method of use, 237--Illustration,
237--Description of artistic work, 238--Portraits, 238--Right
of employer, 239--Photographs, 240--_Tableaux vivants_ and
moving pictures, 241--Architectural works, 242--Copy of a copy,
243--Alterations, 243, 244--Remedies, 245--Artistic copyright
term, 245--British practice, 246--Sculpture provisions,
247--Engraving provisions, 247--New British code, 247--Foreign
countries, 248--Berne convention, 1886, 248--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 compilations,
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--Preventive 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--Prohibition of piratical copies,
280--Permitted importations, 280--Library importations,
281--Seizure, 282--Return of importations, 282--Rules against
unlawful importation, 282--Supersedure of previous provisions,
283--Manufacturing clause affects earlier copyrights,
283--Importation of foreign texts, 284--Printing within
country, 285--Innocent importation, 286--Books not claiming
copyright, 286--Periodicals, 286--Composite books,
286--Rebinding abroad, 287--Importation of non-copyright
translation, 288--Books dutiable, 288--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 Copyrights, 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 organization, 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 ARRANGEMENTS 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--"Literary and
artistic works" defined, 318--Performing rights, 319--Other
provisions, 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 provisions,
333--Ratification, 334--Rio de Janeiro conference, 1906,
334--Rio provisions, 335--Ratification, 336--Buenos Aires
conference and convention, 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--Philadelphia protest, 1872, 351--The
Bristed proposal, 1872, 351--Kelley resolution, 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 Harrison'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
hearings, 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 American systems, 373--First publication and
residence, 373--Variations 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 relations, 381--Colonial relations,
381--Local legislation, 382--Canadian copyright 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, 1911, 386--Imperial and Canadian copyright,
388--Requisites for domestic copyright, 388--Imperial and local
protection, 388--Additional local protection, 389--Application
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--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 adventure," 435--Risk and profit, 435--Long price
and "net" price, 436--Equities, 436--The literary agent,
436--Usual American contract, 437--Publishers' 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--Contract 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 publisher's share, 448--"Author's editions,"
449--Printer's lien, 449--Compulsory license system,
449--License payments, 450--Saving through single publisher,
451--Copyrights in bankruptcy, 451--Copyrights in taxation,
452.
XXIII. THE LITERATURE OF COPYRIGHT 453-462
Bibliographical materials, 453--Early history, 453--Early
American contributions, 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.
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, 495.
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.
6_a_. Fine Arts Copyright Act, 1862, 548.
6_b_. Musical (Summary Proceedings) Copyright Act, 1902, 550.
6_c_. 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
{Sidenote: Copyright, meaning}
Copyright (from the Latin _copia_, plenty) means, in general, the right
to copy, to make plenty. In its 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 "copyright" 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
author's "copy."
{Sidenote: Its two senses}
Copyright, accordingly, may also mean the right in copy made (whether
the original work or a duplication of it), as well as the right to make
copies, which by no means goes with the work or any duplicate 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 person.
Nothing can be more distinct than these two 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 property; 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
composition 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.
{Sidenote: Blackstone}
Blackstone in his Commentaries of 1767, 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 whatever
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 published by another
hand, without any claim or reserve of right, and without stamping on it
any marks of ownership; it being then a present to the public, like
building a church or bridge, or laying out a new highway."
{Sidenote: Property by creation}
There is nothing which may more rightfully be called property than the
creation of the individual 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
manifestation. The best proof of _own_-ership is that if this individual
man or woman had not thought this individual thought, realized in
writing or in music or in marble, it would not exist. Or if the
individual thinking 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.
{Sidenote: Are thoughts created?}
It is sometimes said, as a bar to this idea of property, that no thought
is new--that every thinker 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 Dante dreamed and Boccaccio told his tales. It was
because of Milton and Shakespeare writing, not because 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 persona_,
that gave these form and worth, though they used words that had come
down from generations as the common heritage of English-speaking men.
Property 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.
{Sidenote: Property in unpublished works}
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 manuscript cannot be utilized by
creditors as assets without 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 dedicates 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.
{Sidenote: The question of publication}
It is at the moment of publication that the undisputed possessory right
passes over into the much disputed right to multiply copies, and that
the vexed 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 implied 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 publication 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.
{Sidenote: Inherent right}
The inherent right of authors is a right at what is called common
law--that is, natural or customary law. The common law, says Kent,
"includes those principles, usages, and rules of action applicable to
the government and security of person and property which do not rest for
their authority upon 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 undisputed 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."
{Sidenote: Statutory penalties}
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.
{Sidenote: Statute of Anne}
{Sidenote: Supersedure of common law right}
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 registered 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 doubtless 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 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 English judicial
opinion) decided that, instead of giving 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 English 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
THE EARLY HISTORY OF COPYRIGHT
{Sidenote: In classic times}
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 property in Greek or
earlier literatures. But there is mention in Roman literature of the
sale of playright 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 classic "author's
grumble." Cicero in his letters indicates that there was some notion of
literary property, and it is probable that some kind of payment was made
to authors.
{Sidenote: Roman law}
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.
{Sidenote: Monastic copyists}
{Sidenote: St. Columba and Finnian}
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 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 Adamnan fifty years later
and cited by Montalembert 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 sometimes
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 development of which is traced in detail by George
Haven Putnam in "Books and their makers in the Middle Ages."
{Sidenote: University protection}
This development is illustrated in the statutes of 1223 of the
University of Paris, providing that the "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 annotation and proof-reading of such
texts. In fact, there existed in France in those days a kind of guild of
_libraires jures_ or legalized booksellers, under regulation 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 _libraires_ and eleven _ecrivains_
as registered in Paris, and four chief _libraires_ had jurisdiction over
the calling of the _librarius_ 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.
{Sidenote: Invention of printing}
The invention of printing, prior to 1450, made protection of literary
property a question of rapidly increasing 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 copyright certificate, if it may be so called,
in a printed book was that in the reissue 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 1486 in Venice to
Sabellico.
{Sidenote: In 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 1473, 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 Schoeffer, who
with Fust had established the first publishing and bookselling business,
brought in connection 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 1501, 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
privilege from the magistracy of Frankfort, then the seat of the
book-fair, organized there about 1500, afterwards superseded by that at
Leipzig. Later, imperial privileges were issued by the Imperial
Chancellor in the name of the Emperor, as one in 1510 to the printer
Johann Schott of the "_Lectura 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
authorization to license, possibly similar to that which had been
granted in 1455 by Frederick III and confirmed later by Maximilian I to
Dr. Jacob Oessler at Strasburg, 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
Duerer, with forged signature, were ordered confiscated by the
magistrates of Nuremberg, though perhaps on grounds of fraud rather than
of copyright. But in 1528 Duerer's widow obtained from the Nuremberg
authorities exclusive privilege for his works, and in that year the
magistrates went so far in protecting Duerer's "Proportion" as to
restrain another work of the same title and subject, presumably though
mistakenly inferred to be an adaptation or imitation, until after the
completion and sale of the original work. In 1532 reengravings of some
of Duerer'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 magistracy
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 1531 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,
privileging printers as well as other guilds within a city. The
protection was usually for short terms and sometimes covered the subject
as well as the book, as indicated in the Duerer 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 Frankfort in 1660 passed an ordinance for
the protection of "_buecher_" and "_autores_" and an imperial patent of
1685 made the curious distinction between "privileged" and
"unprivileged" works, which Puetter, reputed the German apostle of the
modern theory of property in literary productions, writing in 1764,
explains as meaning respectively "non-individual" and "individual"
(_eigenthuemlich_) 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.
{Sidenote: In Italy: Venice}
Venice, among whose chief glories were to be the master printers Aldus,
was the first and foremost of 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 printing in
Venice for five years, with prohibition of importation of works printed
elsewhere, which he did not live to enjoy. The first known author's
copyright was granted September 1, 1486, to Antonio Sabellico, historian
to the Republic, of the sole right to publish or authorize the
publication of his "Decade of Venetian 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 application being
accompanied by a certificate from learned doctors of Padua of its value
for the community, 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 another 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 invention of
his own modeled on the handwriting of Boccaccio, 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 Polifilo, because the wars had prevented due
return. The privilege dated sometimes from application, sometimes 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 became frequent, as in 1515 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 1521 Castellazzo
obtained a copyright for his engravings 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 sixteenth 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 1517 the Venetian Senate abolished
all printing privileges previously granted and decreed that privileges
should thereafter be granted only by two-thirds vote and for a new work
(_opus novum_) "never published 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
Bureau 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 10 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 documentary evidence of the consent of the
author or his representatives had been submitted to the Rifformatori,
the commission from the University of Padua, appointed the year before
as censors upon non-theological 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 jures_ in France; and its regulations,
aiding the censorship, incidentally defined literary property and
protected copyrights.
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 imprint. 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, following Brown's historical study of
"The Venetian printing 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
Rifformatori; certificate from the librarian of St. Mark that a copy had
been deposited in the library; examination by experts appointed by the
Proveditori to establish the market price of the book."
{Sidenote: Florence}
Florence was second only to Venice in the production of books and the
protection of authors, and the records of Florentine printing show that
in the sixteenth century international privileges were sought and
obtained. Thus the printer of a Florentine edition of the Pandects, in
1553, obtained privileges also in Spain, France and the two Sicilies,
possibly through a Papal grant.
{Sidenote: Control by the Church}
By 1515, under Leo X, patron of art and letters, the Holy See had
asserted its jurisdiction over copyrights 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 privilege 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 Venetian authorities. There is other evidence of
a compromise 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
requirement 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.
{Sidenote: In France}
In France, after the invention of printing, the functions of the
_libraires jures_, under the authority given by the King through the
University of Paris, naturally came to include books, and this relation
was continued until the Revolution of 1789. Copyrights throughout this
period seem to have been in perpetuity. At the beginning of the
fifteenth century, in the times of Louis XII, "letters of the King"
forbade booksellers, printers and other persons to "introduce foreign
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 librarian," 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 copyright, 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 copyright law was passed, granting copyright to an author for
his life and to his heirs for ten years thereafter.
{Sidenote: In England}
In England, a Royal Printer was appointed in 1504, 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 multiplying books by
means of writing; and Lowndes in his early "Historical sketch of the law
of copyright," 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 inhabiting 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 persons "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 engross, and not by retail"--the buyer to be punished by a fine,
of which a moiety was to go to the informer. The act also contained
provisions to "reform and redress," through the Chancery judges with
"twelve honest and discreet persons," "too high and unreasonable
prices."
{Sidenote: Book restriction}
The quaint preamble of this act of 1533 sets forth as its "whereas," in
reference to the act of Richard III, that "there hath come to this realm
sithen 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; nevertheless, 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 mystery
of binding of books, and that there be a great multitude well expert in
the same, yet all this notwithstanding, 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 wherewith 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.
{Sidenote: Early English protection}
Henry VIII granted many printing privileges, and in 1530 the first
English copyright to an author was issued to John Palsgrave, who, having
prepared a French grammar at his own expense, received a privilege for
seven years. In 1533 appeared the first 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 middle of the sixteenth century
copyrights were in form printers' licenses, and even in the case cited
Palsgrave seems to have been recognized rather because he published his
own book than because he wrote it.
{Sidenote: The Stationers' Company}
The Stationers' Company, created by Henry VIII and chartered under Queen
Mary in 1556, though the development of an earlier guild dating from
1403, was in part a device to prevent seditious printing, by 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 printed 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 whole class of books; the
Stationers' Company itself held that for almanacs up to a very late
period, and the Crown has retained that on the Bible and the Book of
Common 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 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 Stationers' 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
particularly 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."
{Sidenote: Statutory provisions}
In 1649 Parliament provided a penalty of 6_s._ 8_d._ 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 fraudulent 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, although 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 penalties, which left the punishment of piracy a matter of
damages at common law, requiring a separate action for each copy sold,
usually against irresponsible people. Piracy again flourished. The right
at common law seems, however, to have been unquestioned, and the Court
of Common Pleas held that a plaintiff 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 L50,000, and had
been used in marriage settlements and were the subsistence of many
widows and orphans. This led to the famous statute of Anne, introduced
in 1709, and passed March, 1710, "for the encouragement of learning,"
said to have been drawn in its original form by Swift, which remains the
practical foundation of copyright in England and America to-day.
III
THE DEVELOPMENT OF STATUTORY COPYRIGHT IN ENGLAND
{Sidenote: The statute of Anne as foundation}
The statute of Anne, the foundation of the present copyright system of
England and America, which took effect April 10, 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
prolonged for another fourteen years. Penalties were provided, which
could not be exacted unless the books were registered with the
Stationers' Company, 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 lowered. A book could not be imported without written
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.
{Sidenote: Its relations to common law}
{Sidenote: The crucial cases}
This act did not touch the question of rights at common law, and soon
after its statutory term of protection on previously printed books
expired, in 1731, lawsuits began. The first was that of Eyre _v._
Walker, in which Sir Joseph Jekyll granted, in 1735, an injunction 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 1769 the famous case of Millar _v._ Taylor, as to
the copyright of Thomson's "Seasons," brought directly before the Court
of King's Bench the question whether rights at common 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 Donaldson 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.
{Sidenote: The Judges' opinions}
The House of Lords propounded five questions to the judges. These, with
the replies,[1] were as follows:
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 1 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 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 composition 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, restrained, or taken away by
the statute of 8th Anne? Yes, 6 to 5.
Footnote 1: 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.
{Sidenote: The Lords' decision}
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 Chancellor, the House of Lords, 22 to 11, reversed the
decree 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.
{Sidenote: Protests}
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 universities (to which Dublin was added in 1801), and to the
colleges of Eton, Westminster and Winchester, 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.
{Sidenote: Supplementary legislation}
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, 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.
{Sidenote: The Georgian period}
Meantime, during the Georgian period, there had been much incidental
copyright legislation. The provision in the statute of Anne for the
limitation of prices was repealed by the act of 1739, which also
continued the prohibition of the importation of foreign reprints,
further continued in later acts or customs regulations from time to
time, until these were disposed of by the statute law revision act of
1867. Copyright had been extended to engravings and prints by successive
acts of 1734-5 (8 George II, c. 13), 1766-7 (7 George III, 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 stationer of London, sole liberty of printing an
improved edition of the histories of Thuanus, and the engravings 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, except on demand. The university
copyright act of 1775 (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.
{Sidenote: Legislation under William IV}
In the reign of William IV the dramatic copyright act of 1833 (3 William
IV, c. 15) became, and in part remains, the basis of copyright in drama.
The lectures 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 William IV, c. 59) extended protection to
those classes in that country, and another copyright act (6 & 7 William
IV, c. 110) 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.
{Sidenote: The Victorian act of 1842}
In 1841, under the leadership of Serjeant Talfourd, author of "Ion" and
other dramatic works, a new copyright bill was presented to the House of
Commons, in the preparation of which George Palmer Putnam, the American
publisher, then resident in London, had been consulted. It provided for
compulsory 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 author, 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 the right in these reverts to
the author after twenty-eight years. The Judicial 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 republish.
{Sidenote: Protection of designs}
In the same year, 1842, there was passed also a copyright in designs
act, covering designs for articles of manufacture, consolidating
previous laws on this specific subject from 1787 to 1839 (two bills in
this last year having extended protection to printing designs 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.
{Sidenote: Subsequent acts}
An international copyright act, introduced in the 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), providing 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 suspension for
such colony of the prohibition of foreign reprints, 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 international copyright act was passed in
1852 (15 & 16 Victoria, 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 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 copyright act" (38 & 39 Victoria,
c. 53) gave effect to a Canadian parliament act respecting copyright
reprints.
{Sidenote: The Royal Commission report of 1878}
"The law of England, as to copyright," says the report of the Royal
Copyright Commission, in a blue-book of 1878, "consists partly of the
provisions 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 Commission 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 provisions for the
prohibition of the importation of copyright books.
{Sidenote: Later legislation}
Despite the recommendations of the Commission and several later
endeavors to pass a comprehensive 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 copyright and the vexed question of musical
compositions.
{Sidenote: International copyright}
The international copyright act of 1886 (49 & 50 Victoria, c. 43),
amending and extending, and in part repealing the earlier international
copyright acts and provisions, was intended to enable Great Britain,
through Orders in Council, to become a party to international
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, taking effect December 6,
1887. The convention was to extend to the British possessions, though
with exceptions 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 published,"
if registered as required by the customs authorities.
{Sidenote: Musical copyright}
The protection of musical compositions was in such confused and
unsatisfactory condition that special legislation was necessary. The
recent laws on this subject, described in detail in the chapter on
dramatic and musical copyright, include the copyright (musical
compositions) act of 1882 (45 & 46 Victoria, c. 40); the copyright
(musical compositions) act of 1888 (51 & 52 Victoria, c. 17); the
musical (summary proceedings) 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 Copyright Committee of
1904,--which successively met imperfections developed in applying the
previous law.
{Sidenote: Committee report of 1909}
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 seventeen
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
conformity with the Berlin agreement of 1908. The Committee made a
report in December, 1909, strongly advising 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 included a _projet de loi type_ (model bill) on
copyright, drafted by the International Literary and Artistic
Association, and an artistic copyright bill drafted by the Artistic
Copyright Society.
{Sidenote: Imperial copyright conference of 1909}
In the early part of 1909 an Imperial copyright conference was also held
in London, attended by Crown officials and representatives from all of
the self-governing dominions, at which certain resolutions for copyright
betterment were adopted. Its minutes and resolutions were also presented
to Parliament.
{Sidenote: The pending bill}
As a result of the deliberations and reports of these two bodies, "a
bill to amend and consolidate the law relating to copyright" (1 George
V) was introduced 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 copyright acoustic or visual performance or
exhibition and control for mechanical reproduction. The bill, somewhat
modified, was reintroduced into the subsequent Parliament March 30,
1911, 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 1, 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 consolidation 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.
{Sidenote: Design patents}
The bill does not, however, repeal the previous law as to copyright in
designs, which had continued to receive consideration during the
Victorian reign in laws, later than those cited, of 1858-1861, and thus
finally became merged in the protection of patents. Thus "designs
capable of being registered under the patents and designs act, 1907,"
are specifically excepted under clause 22 of the proposed copyright
code.
{Sidenote: Common law rights}
It seems possible that, under the precedent of the acts of 1775 and
1801, the common law rights practically taken away by the statute of
Anne and specifically 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
{Sidenote: Constitutional provision}
The Constitution of the United States authorized Congress "to promote
the progress of science and 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 Madison's motion, Congress, in May, 1783,
recommended the States to pass acts securing copyright for fourteen
years.
{Sidenote: Early state legislation}
Connecticut in January, 1783, Massachusetts in March, 1783, and Maryland
in April, 1783, had already 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. Pennsylvania 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 provided for copyright,--thanks to the vigorous copyright
crusade of Noah Webster, who traveled from capital to capital,--when the
United States statute of 1790 made them unnecessary.
{Sidenote: The act of 1790}
This act followed the precedent of the English act of 1710, and gave to
authors who were citizens or 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 expiration of the
first term. A printed title must be deposited before publication in the
clerk's office of 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.
{Sidenote: 1802-1867}
{Sidenote: The revised act of 1870}
{Sidenote: 1874-1882}
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 designs, engravings and etchings; in 1819, giving United
States Circuit Courts original jurisdiction in copyright cases; in 1831
(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), requiring 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 dramatists the right of
performance; in 1859, repealing the provision of 1846 for the deposit of
copies, and making the Interior Department instead of the State
Department the copyright custodian; in 1861, 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 Congress,
within one month from publication; in 1867, providing $25 penalty for
failure to deposit. This makes twelve acts bearing on copyright up to
1870, when a general act took the place of all, including "paintings,
drawings, chromos, statues, statuary, and models or designs intended to
be perfected as works of the fine arts." This did away with the local
District Court system of registry, and made the Librarian of Congress
the copyright officer, with whom printed title must be filed before, and
two copies deposited within ten days after, publication. In 1873-4 the
copyright act was included in the Revised Statutes as sections 4948 to
4971 (also see secs. 629 and 699), and in 1874 an amendatory act made
legal 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, decorative articles, etc.
{Sidenote: International copyright legislation, 1891}
In 1891 there was passed, after a long campaign, the so-called
international copyright act, extending copyright to the citizens of
other nations in case of 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 infringement of photographs and of original
works of art. In 1897 an act provided that unauthorized representation,
wilful and for profit, of any dramatic or musical composition is a
misdemeanor punishable by imprisonment; another act provided for the
appointment of a Register of Copyrights under the direction and
supervision of the Librarian of Congress; and a third act provided
penalty for printing false claim of copyright and prohibited the
importation of articles bearing a false claim of copyright. In 1904
provision 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 publication and bearing
notice of reservation.
{Sidenote: Private copyright acts}
A curious incident in American copyright legislation 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 special 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
Congress and to make any abridgement thereof, and a similar special
copyright was voted in 1866 for Herndon'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 imperfectly 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.
{Sidenote: American possessions}
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 Hawaii. In the same year the act providing temporary government 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 jurisdiction of the code of 1909. American copyright was extended to
the Canal Zone by War Department order in 1907.
{Sidenote: The American code of 1909}
Finally, in 1909, there was passed the new copyright code repealing all
previous legislation and providing comprehensively for the whole subject
of copyright, literary, artistic, dramatic, musical, or other. Under
this code copyright is effected by publication 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 type-setting 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.
{Sidenote: State protection of playright}
In line with the dramatic act of 1897, the dramatic authors between 1895
and 1905 procured state legislation in the States of New Hampshire, New
York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts,
Minnesota, California, Wisconsin, Connecticut and Michigan, differing
somewhat in form, to give effect to the federal copyright laws in
respect to dramatic performance or to apply the principles of common law
through the punishment of dramatic companies disregarding performing
rights.
{Sidenote: Citations}
{Sidenote: Trade-Mark act}
Citations of all these laws will be found in Appendix 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 February 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."
{Sidenote: Common law relations}
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, which, in its statute of 1786,
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
precedent of Wheaton _v._ Peters nevertheless held. During the
discussion of the present copyright code, Edward Everett Hale consulted
with other veteran authors whose early works were passing out of
copyright, 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.
{Sidenote: Divided opinions}
As in the English case of Donaldson _v._ Becket, the decision in the
American ruling case of Wheaton v. Peters came from a divided court. The
opinion was handed down by Justice McLean, three other judges agreeing,
Justices Thompson and Baldwin dissenting, 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 statements ever made of natural rights in literary
property, 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 esteemed an inviolable right established in sound reason
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 belonging 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.
V
SCOPE OF COPYRIGHT: RIGHTS AND EXTENT
{Sidenote: General scope}
The scope of copyright, or the nature and extent of the right or
privilege, may be said to cover at common law identical rights with
those in any other property, to use the phrase which, in Siam, transfers
these rights to statutory law, but in statutory law must be taken to
depend upon the terms of the statute.
{Sidenote: American provisions}
The new American copyright code, passed March 4, 1909, and in force July
1, 1909, in its fundamental provision broadly sets forth and
specifically defines the scope of copyright, by providing (sec. 1):
"That any person 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, execute, and finish it if it be a model
or design for a work of art;
{Sidenote: Oral addresses}
"(c) To deliver or authorize the delivery of the copyrighted work in
public for profit if it be a lecture, sermon, address, or similar
production;
{Sidenote: Dramas}
"(d) To perform or represent the copyrighted work publicly if it be a
drama, or, if it be a dramatic work and not reproduced in copies for
sale, to vend any manuscript or any record whatsoever thereof; to make
or to procure the making of any transcription or record thereof by or
from which, in whole or in part, it may in any manner or by any method
be exhibited, performed, represented, produced, or reproduced; and to
exhibit, perform, represent, produce, or reproduce it in any manner or
by any method whatsoever;
{Sidenote: Music}
"(e) To perform the copyrighted work publicly for profit if it be a
musical composition and for the purpose of public performance for
profit; and for the purposes set forth in subsection (a) hereof, to make
any arrangement or setting of it or of the melody of it in any system of
notation or any form of record in which the thought of an author may be
recorded and from which it may be read or reproduced"--which last clause
is, however, limited by an elaborate proviso requiring the licensing of
mechanical musical reproductions in case the copyright proprietor
permits any reproduction by that means, which proviso is given in full
in the chapter on mechanical music.
{Sidenote: Previous American law}
The American law previously defined the scope of copyright (Rev. Stat.
sec. 4952), as "the sole liberty of printing, reprinting, publishing,
completing, copying, executing, finishing, and vending the same; and, in
the case of a dramatic composition, of publicly performing or
representing it, or causing it to be performed or represented by others.
And authors may reserve the right to dramatize or to translate their own
works." The new code is both broader and more definite.
{Sidenote: Unpublished works}
The new American code is specific in preserving to an author previous to
the publication of his work all common law rights in the comprehensive
language (sec. 2): "That nothing in this Act shall be construed to annul
or limit the right of the author or proprietor of an unpublished work,
at common law or in equity, to prevent the copying, publication, or use
of such unpublished work without his consent, and to obtain damages
therefor."
{Sidenote: Common law scope}
In the Washburn form of the copyright bill it was proposed to include a
clause to the effect "that subject to the limitations and conditions of
this Act copyright secured hereunder shall be 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.
{Sidenote: Common law in U. S. practice}
The common law of England became the common law of its colonies and
finally of the sovereign States of the United States, and common law is
therefore administered by the state rather than by the federal courts.
In the case of Wheaton _v._ Peters, the U. S. Supreme Court went so far
as to say "there is no common law of the United States," but federal
courts accept and apply in each State the common law as accepted in that
State, and in later years the U. S. Supreme Court has held, as in 1901,
in Western Union Tel. Co. _v._ Call Pub. Co., that where there is a
conflict between the common law as accepted by different States or where
the rule adopted is not in accord with federal courts, the United States
courts will recognize and enforce the common law of England. This use by
the federal courts, as here pointed out by Justice Brewer, is peculiarly
applicable to interstate transactions. The effect of section 2 of the
copyright code is to give the federal courts the special authority of
Congress to accept and enforce the principles of common law and of
equity in the case of unpublished works.
{Sidenote: Statutory limitations}
But in the case of a published work, the courts have denied to copyright
works some of the rights and remedies applicable previous to
publication, because not specifically granted by statute, in accordance
with the established rule that no rights or remedies will be allowed by
the courts unless specifically granted. But the common law right of the
author is recognized by the courts notwithstanding the publication of
his work, if that is done without the author's consent. In 1896, in the
case of Press Pub. Co. _v._ Monroe, the doctrine was specifically held
by the U. S. Circuit Court of Appeals through Judge Lacombe, that the
unauthorized publisher may be restrained and damages obtained by civil
action, and recovery in such an action will not divest the author of any
of his rights or invest any of his rights in the infringer or the
public.
{Sidenote: General rights}
Thus the owner of a copyrightable work may (before publication), as with
other personal property, preserve his work exclusively for his own use,
or he may (1) print, (2) reprint, (3) publish, (4) copy, or (5) vend it;
or
If it be a literary work he may (6) translate it, or (7) make any other
version thereof, or (8) dramatize it; or
If a work for oral delivery he may (9) deliver or authorize delivery in
public for profit; or
If it be a dramatic work he may (10) convert it into a novel or other
non-dramatic form or (11) perform or represent it, or (as in 5) vend any
manuscript or record thereof, or (12) make or cause to be made any
transcription or record thereof; or (13) exhibit, perform, produce, or
reproduce it in any manner or by any method; or
If it be a musical work he may (14) arrange or (15) adapt it, or (as in
11) perform it publicly for profit, or (16) make any arrangement or (17)
setting of the melody in any notation or by any form of record (the last
subject to the license provision of the statute); or
If a design for a work of art, he may (18) complete, execute, and finish
it,
--all these being specifically reserved and granted to the author,
although in somewhat complex and overlapping phraseology, by the new
American code.
{Sidenote: Inferential rights}
Or, in utilizing his rights at common law or as above granted by
statute, he may (19) give, (20) lend, (21) grant, (22) sell, (23)
manufacture, (24) lease or license, (25) mortgage, or (26) devise his
work or the use of it, or (27) it may pass by inheritance,--as pointed
out by Arthur Steuart, chairman of the Copyright Committee of the
American Bar Association, in his argument before the Congressional
Committees.
{Sidenote: Differentiated rights}
Or, as also pointed out by Mr. Steuart, he may "impose upon any of these
estates any condition or limit," as by limiting the use (28) for special
purposes, (29) at a special price, or (30) for a special time, or (31)
in a special locality, or (32) to a special person.
{Sidenote: Court protection}
The rights scheduled, adds Mr. Steuart, the courts will protect (a) "in
equity by injunction and the recovery of profits"; or (b) "at law by a
civil action for trespass or conversion, with a recovery of special
damages for actual injury or punitive damages for injury to reputation,
or by replevin for the recovery of possession of the work, as well as by
any other form of action known to the common law or statute law and
proper to the protection of this class of property."
{Sidenote: Division of rights}
The owner of the copyright of a book may thus publish a limited edition
of his book and sell it to whom he may please, or for a specified
market. Such specified or divided rights are recognized in Germany as
"_getheiltes Verlagsrecht_," in France as "_edition partagee_," and
there is specific reference to them in the German copyright law. Some of
the specified rights are cognate to the rights of a proprietor of land
to sell a piece of land subject to certain restrictions, agreed upon
with the purchaser or imposed upon the title in the deed of transfer. As
in the frequent practice of restricting use for the purposes of a stable
or a shop, or requiring that only one house shall be built on a
specified number of lots.
{Sidenote: Analysis of property rights}
In an elaborate discussion of fundamental principles in his opinion in
Harper _v._ Donohue, in 1905, affirmed by the Circuit Court of Appeals
in 1906, Judge Sanborn analyzed the property rights of an author before
publication, after unrestricted publication and after publication under
the copyright acts. Among the rights before publication he mentions "the
right to sell and 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." "Unrestricted publication," he says, "without copyright, is a
transfer to the public to do most of the things the author might do, in
common with the author, except all right of transfer and sale, which
remains to the author; but without advantage, since the work has become,
by the publication, common property." "The copyright acts," he
concludes, "substantially give the following additional rights: To
copyright, and thus secure the sole privilege of unlimited
multiplication and sale of copies; to sell or transfer the unlimited
right of reproduction, sale and publication, the limited right of serial
publication, the right of publication in book form, the right of
translation, the right of dramatization or one or more of these rights
in specific territory, and the right to secure a copyright either
generally, or in one or more countries whose laws permit it, either in
the name of the author or 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 principles as to such rights.
In the case of Press Pub. Co. _v._ Monroe, the court said:
{Sidenote: Broad interpretation}
"The right of property includes the right to transfer the subject of it
or any interest in it by gift, grant, or device. And if the fruits of
mental effort are regarded as property, like all other possessions, they
descend to the legatees, the executors, and administrators of their
creditors; they pass by sale or gift to their transferees; the use of
them, limited or unlimited, goes to their licensees, and, logically, the
power of the State is bound to protect forever the successive owners in
the exclusive use and enjoyment thereof."
{Sidenote: Limits of protection}
Where these latter rights are not specifically granted by statute, the
rule has been established by the courts that they will be upheld so far
as necessarily inferable from the rights granted and not further. It is
under this rule that the greater number of the mooted questions in the
application of copyright law have arisen in respect to the scope of
copyright. Most of these specific rights are in fact necessary
inferences from the statute, in the protection of the property rights
therein conferred, but the courts will not go beyond fair construction
of the letter of the statute.
{Sidenote: Differentiated contracts}
In respect to the rights to give, lend, grant, manufacture, lease or
license, mortgage or devise copyright property, it may be said that
these are subsidiary rights conditioned on and essential to the general
right of property in copyrightable or copyrighted material. An author
may exercise any of these rights in respect to his unpublished work so
far as they are applicable to it, or to his copyrighted work after
publication; and either the copyrightable manuscript or the copyrighted
work may pass by inheritance. Thus an author may manufacture, or cause
to be manufactured, his unpublished work, and he may retain exclusive
control over the manufactured copies so long as he pleases before
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.
{Sidenote: Enforcement in limited grants}
In respect to the right to limit the use of his work under his sale,
gift, loan, grant, lease, etc., for a special 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 provided for by
the law only for the copyright in general, the separate estates as a
right to publish in a periodical and the right to publish as a book may
be sold and assigned separately, and the special assignment recorded 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
specifically provided in the law under recorded assignment of the entire
copyright.
{Sidenote: Copyright as monopoly}
Copyright is a monopoly to which the government 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 encouragement 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. Copyright is a monopoly only in the
sense that any ownership 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 property
is 'robbery.'" In the copyright debates of 1891, Senator O. H. Platt
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 Appeals, 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 Cullen in the case of Murphy _v._ Christian Press Association, in
the Appellate Division of the N. Y. Supreme Court, in 1899, decisions as
to agreements in restraint of trade "have no application to agreements
concerning copyrights and patents, the very object of which is to give
monopolies."
{Sidenote: Limit only in term}
Copyright being in essence a monopoly giving to 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 opponents 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 market 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 respect to books; and in the
passage of the "international 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 "Question of copyright."
In the work on "The law and history of copyright," by Augustine Birrell,
a member of the present British cabinet, this plan is characterized 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
publisher 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 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 serious defect. There is
question, indeed, whether the compulsory license and fixed price may not
be an unconstitutional provision. This matter is more fully discussed in
later chapters.
{Sidenote: Altered theory of copyright}
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 conforms
statutory with common law, by making publication with notice the initial
copyright act and registration and deposit secondary acts necessary for
the completion of the copyright and its protection under the statute.
{Sidenote: Publishing}
The definition of the date of publication (sec. 62) as "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" 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 consent. 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, absolutely 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 in intellectual
property as a natural and inherent right.
{Sidenote: What constitutes publishing}
As to what constitutes publishing, interpretation by the courts based on
previous law will in many 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.
{Sidenote: "Privately printed" works}
Publication depends upon sale or offer to the public, and it is a
question whether the sale or offer of a copyrightable work, as the
proceedings or publications 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 published," 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 members of a
nominal society, made up of the purchasers of the work, would constitute
publication and, if without copyright notice, dedication.
{Sidenote: Copying}
As to the right to copy, this word in the broad sense 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 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 statutory 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 transcription or record" were included in the new code, although
these would be included in the broader sense of the right "to copy."
{Sidenote: Vending}
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 conditions 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 unless 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:
{Sidenote: Control of sale}
"Upon the doctrine of these cases we think it follows that one who buys
patented articles of manufacture 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 contracts brought home to the purchaser is not a
question 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 under the inherent meaning and effect of the patent laws."
{Sidenote: Specific relation to copyrights: the Macy cases}
This question in specific relation to copyrights again came before the
U. S. Supreme Court in a series of cases, known as the Macy cases,
between Isidor and Nathan Straus doing business as R. H. Macy & Co., on
the one side, and the Bobbs-Merrill Co. and Charles Scribner's Sons as
the respective defendants.
In both cases, the publishers had sought to maintain the retail price of
a book, as a right under the copyright law. The Bobbs-Merrill Co.
copyrighted the "Castaway" May 18, 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 purpose as to their
copyright books by printing in their catalogues, invoices and bills of
goods the following notice: "Copyrighted net books published after May
1, 1901, and copyrighted fiction published after February 1, 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 Publishers' Association, in
consideration of a discount allowed 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 inducing dealers from whom the purchases were made
to violate the agreement with the publishers.
{Sidenote: The Bobbs-Merrill case}
In the leading case of Bobbs-Merrill Co., appellant, _v._ Straus, the
opinion of the U. S. Supreme Court was delivered June 1, 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 undertaking to sell for less than the named
sum? We do not think the statute can be given such a construction, 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 agreement 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 contract."
{Sidenote: The Scribner case}
In the Scribner case the decision delivered on the 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 statutory 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 confer
jurisdiction of questions of rights independent of the copyright
statutes." On the allegations of the bill as to alleged contributory
infringement by inducing 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.
{Sidenote: English underselling case}
In the English case of Larby _v._ Love, in 1910, however, Justice
Bucknill in the King's Bench held the defendant liable for damages for
the sale of certain maps to undersellers in disregard of prohibitions
specified in the bill of sale.
{Sidenote: Suits under state law}
The Macy cases included suits in the New York State courts by Straus
_v._ American Publishers' Association _et al._, claiming that the action
of the publishers in endeavoring to maintain rates constituted a
conspiracy 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
copyright publications, but were contrary to the statute in affecting
the right of a dealer to sell books not copyrighted 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 question 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 safeguards the
copyright proprietor against certain provisions of the anti-trust laws,
state or national.
{Sidenote: Translating}
{Sidenote: "Other version"}
The right "to translate into other languages or dialects" is
strengthened in the new American code by the addition of the phrase "or
to make any other version 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 reservation of rights except
as implied and included in the general copyright notice. The broad
phrase "make any other version thereof" may cover not only translation
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 author of
a narrative poem, like Owen Meredith's "Lucile" 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.
{Sidenote: Translating term}
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 dramatize 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
dramatize is separate from the right to copyright a translation or
dramatization, as is shown by the fact that a translation or
dramatization can be separately copyrighted for a term extending from
its own date of publication and therefore possibly beyond the copyright
term of the original work, though on the expiration of the primary
copyright any one else may make a translation or dramatization despite
the continuing 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.
{Sidenote: Oral delivery}
The exclusive right to deliver orally addresses and similar productions
is now specifically included in the American law, as in the laws of some
other countries, and probably involves the right to register, before
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 protect his copyright in
a poem which he publicly recites, it may be desirable that he should
register such unpublished work under the provisions of the act for that
purpose; although it is a generally accepted doctrine that oral delivery
does not constitute publication, and that the matter orally delivered
may thus be protected at common law.
{Sidenote: "Publicly and for profit"}
It should be noted that in the case of a lecture or other work for oral
delivery and of a musical composition, 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, 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 author of a lecture, drama, or musical
composition, except in such instances as a private rendering in a
private house, to which there was not public admission 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 copyright.
{Sidenote: Material and immaterial property}
The American code adopts into the law an important distinction as
between the property in the material and the immaterial rights, hitherto
somewhat uncertain, in the following provision (sec. 41): "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 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."
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,
knowledge, and payment are concerned, he would have "lawfully obtained"
it.
{Sidenote: Schemes not copyrightable}
The scope of copyright cannot be extended to cover a business or other
scheme described in a copyrighted 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.
{Sidenote: The new British code}
The new British measure defines copyright to mean "the sole right to
produce or reproduce the work or 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 copyright 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 publication, as
was strongly upheld in 1908 in Mansell _v_. Valley Printing Co. in the
English Court of Appeal. As to published works, the new code continues
the settled law reiterated as late as 1910 in Monckton _v_. The
Gramaphone Co., where Justice Joyce in the Chancery Division denied the
common law claim of the author of a song printed with prohibition of
mechanical production, on the ground that after publication there was no
copyright except as given by statute.
{Sidenote: Foreign statutes}
The statutes of foreign countries are in general of similar scope,
though with variations of extent and phraseology in the several
countries. The broadest seems to be that of Siam, above cited,
translating common 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 impression 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 included in other countries under the general
construction of statutory rights in property.
{Sidenote: International provisions}
The international copyright convention, as modified at 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 representation, translation,
adaptation, mechanical reproduction, etc., as set forth in the chapter
on international copyright conventions.
Common law, or a crude equivalent for it, as enforced by the courts,
seems to extend copyright protection, in the absence of specific
legislation, in Montenegro, Egypt and Liberia, Honduras, the Dominican
Republic, and Uruguay, as formerly in Argentina.
VI
SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE COPYRIGHTED
{Sidenote: Subject-matter in general}
The subject-matter of copyright should include, in the nature of things,
those products of invention, 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.
{Sidenote: Classification}
The new American code gives the following classification 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 compilations;
"(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;
"(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 specifications 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."
{Sidenote: Prints and labels excluded}
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 18,
1874.
{Sidenote: All the writings of an author}
It is enacted (sec. 4): "That the works for which copyright may be
secured under this Act shall include 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.
{Sidenote: Component parts}
It is also enacted (sec. 3): "That the copyright provided by this Act
shall protect all the copyrightable component parts of the work
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 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."
{Sidenote: Compilations, new editions, etc.}
It is also enacted (sec. 6): "That compilations or abridgments,
adaptations, arrangements, dramatizations, translations, or other
versions of works in the public domain, or of copyrighted works when
produced with the consent of the proprietor of the copyright 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 construed to imply an exclusive right to such use of the
original works, or to secure or extend copyright in such original
works."
{Sidenote: Non-copyrightable works}
The provisions of the law regarding the subject-matter of copyright are
completed by the negative provision:
"(Sec. 7.) That no copyright shall subsist in the original text of any
work which is in the public domain, 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 copyrighted 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."
{Sidenote: Government use}
It is not to be inferred from the provision as to Government
publications, that the United States 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 owner except for public purposes and then only by condemnation
proceedings at law and with fair remuneration 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, becoming the property of the Government, is put freely at
the service of the people.
{Sidenote: "Author" and "writing" definitions}
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 production" (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 Dict.); "expression of ideas by
visible letters" (Anderson's Dict. 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.
{Sidenote: Interpretation by Congress and courts}
Congress, upheld by the courts, had specifically included (law of 1870)
under "writings" in the Constitution a "statue," "statuary," "model,"
without requiring the artist to make a preliminary sketch (if that be
specifically a writing)--otherwise, as sculptors 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 relating 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 Constitution, 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.
{Sidenote: Supreme Court decisions}
The U. S. Supreme Court, in 1884, in the decision of Burrow-Giles Lith.
Co. _v._ Sarony, extending the principles 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 probably 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 narrow 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 production 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 selects to
embody his literary product."
{Sidenote: Originality and merit}
The courts are disposed to extend copyright to any work involving
intellectual labor or brain skill, without 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 Chancellor 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 inaccurate, of
literary merit, or of no merit whatever."
{Sidenote: "Book" definitions}
The word "book" covers the great body of copyright property, and has
been many times the subject of judicial construction giving the most
comprehensive 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 meaning of
the legislature"; and that "any composition, whether large or small, is
a book within the meaning 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 volume, 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 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.
{Sidenote: Inclusions adjudicated}
In fact, though all English and American statutes have been avowedly for
"the encouragement of 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: (1) general miscellaneous compilations; (2)
annotations 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) mathematical tables; (12) a list of hounds; (13) abstracts of
titles to lands; and collections of (14) statistics, (15) statutory
forms, (16) 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) newspaper reports of public
speeches; (21) telegraphic codes; (22) mining reports; (23) a
tradesman's alphabetical list of wares; (24) a list of public documents;
(25) mathematical calculations; (26) legal forms; (27) an application
form for membership; (28) complications of railroad time-tables; (29)
commercial circulars, protected by a Canadian decision; (30) school
registers, and (31) stud book list of horses.
{Sidenote: Exclusions adjudicated}
On the other hand, the courts have declined to include 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 railway ticket designed for punching; (h) a day's
sporting tips; (i) blank books; or (j) blank forms, as a cricket
score-card; and (k) monograms.
{Sidenote: Inclusions defined}
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 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, frequently called charts; tables of figures showing 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 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 newspapers."
{Sidenote: Exclusions defined}
On the other hand, definitions are made negatively that:
"(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 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 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."
The Rules also make the following negative definitions:
"(12) No copyright exists in toys, games, dolls, advertising 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 Copyright Office, including that of maps, will be
found in the chapters on dramatic and musical copyright and on artistic
copyright.
{Sidenote: 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 copyright.
"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 document, on which blank spaces are to be filled in,
which are accepted as proper subject-matter for copyright by the
Copyright Office.
{Sidenote: Combinations and arrangements}
The copyright under certain categories above scheduled may be in the
combination and arrangement only, or it may be also in any original
material included with other material. Quantity is not an essential
element in copyright so much as "substantial importance." An English
court protected a passage of only sixty words.
{Sidenote: Advertisements}
In respect to advertisements and advertising matter as such, the new
American code is silent, and court decisions, mostly English, have been
contradictory. In 1863 Vice-Chancellor Page Wood, in Hotten _v._ Arthur,
"found no difficulty" in deciding that a catalogue of old books was a
subject of copyright "notwithstanding that the catalogues were for the
purpose 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 absolutely 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
catalogue 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 Chancery Division held a sheet of
advertising illustrations with headlines and prices a book.
{Sidenote: Undistinctive advertising not protectable}
An advertisement _per se_ of an ordinary character, the courts may
decline to protect, either on behalf of the advertiser or of the
publisher of the periodical in which it appears; thus possibly ordinary
advertisements might be copied by another paper, to give an inflated
impression of its advertising patronage unless enjoined for intent to
deceive. On the other hand, characteristic advertisements, as those for
which department 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 advertisements, 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 injunction for the combination or
arrangement of copyrightable 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 difficulty 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 demarcation in advance as to
advertisements, but it has declined in a recent instance to accept for
registry recipes printed on tin and inserted in packages of flour to
advertise the flour, which could scarcely be accepted as a "book" or
other copyrightable matter.
{Sidenote: New editions}
New editions are protected under the American 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-Chancellor
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 Minstrelsy" was protected, on Lord President
Inglis' decision, 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 copyright at all; but that must always depend upon
circumstances. 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 improved as to
constitute in reality a new work, and that just as clearly will entitle
the author to a copyright running from the date of the new edition." A
few colorable alterations or unimportant notes may not justify a new
copyright; a Scotch justice, however, 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 edition, whether made by rewriting,
extending, condensing, annotating, or otherwise altering, runs
independently of the term of the original or any other edition, 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).
{Sidenote: Copyright comprehensive}
"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
letterpress 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 compositions, each of the latter
is as fully protected as the whole." The copyright under the new law
protects (sec. 3) "all the copyrightable component parts of the work
copyrighted." The practice of some publishers in copyrighting a magazine
and also specific 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 copyrighted."
{Sidenote: Non-copyrightable parts excepted}
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 perfectly 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 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 copyright will not vest in any of it." The new code is to the same
effect.
{Sidenote: Book illustrations}
The application of these principles to the protection of a "new edition"
which is new only with respect 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 illustrations would not be a false use of the copyright
notice. A proper copyright notice on an illustrated book will, however,
protect the illustrations against indirect 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.
{Sidenote: Translations}
In respect to translations, the new American law is specific, not only
in its mention of "translations" (sec. 6), but in giving (sec. 1, b) 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." The early American precedent was 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 n
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