Copyright: Its History and Its Law Part 14

{Sidenote: Loss in mail}

Thus even if the deposit copies should not reach Was.h.i.+ngton, as in case they were burned in the mail, the copyright proprietor can validate his claim by production of the postmaster's receipt in lieu of deposit copies.

{Sidenote: Foreign works}

In respect to foreign works, it should be noted that "the original text of a work of foreign origin in a language or languages other than English," may be formally copyrighted and fully protected by registration under the same formalities as domestic works except that the deposit copies need not be manufactured within the United States, thus giving the author the exclusive right of translation. Copies published for use in America must of course bear the copyright notice. A translation into English from such text cannot be copyrighted unless the deposit copies of the English translation are manufactured within the United States; and this holds true also in respect to translations into a language other than English, as it is only "the original text" which can be copyrighted without American manufacture.

{Sidenote: Ad interim deposit}

In respect to books published abroad in the English language, _ad interim_ protection is a.s.sured by the provision (sec. 21): "That in the case of a book published abroad in the English language before publication in this country, the deposit in the Copyright Office, not later than thirty days after its publication abroad, of one complete copy of the foreign edition, with a request for the reservation of the copyright and a statement of the name and nationality of the author and of the copyright proprietor and of the date of publication of the said book, shall secure to the author or proprietor an _ad interim_ copyright, which shall have all the force and effect given to copyright by this Act, and shall endure until the expiration of thirty days after such deposit in the Copyright Office."

{Sidenote: Completion of ad interim copyright}

On such works the provisional copyright is made permanent under the provision (sec. 22): "That whenever within the period of such _ad interim_ protection an authorized edition of such book shall be published within the United States, in accordance with the manufacturing provisions specified in section fifteen of this Act, and whenever the provisions of this Act as to deposit of copies, registration, filing of affidavit, and the printing of the copyright notice shall have been duly complied with, the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act."

The _ad interim_ provision requires the same formalities and fee as in the case of domestic works, except that only one copy of the foreign work in English need be deposited, and that this deposit copy need not contain the statutory notice of American copyright. The claimant is given thirty days after publication abroad in which to request reservation and a second thirty days after deposit of the foreign copy within which to publish or cause to be published an edition manufactured in America and thus to complete his copyright. This gives a period of _ad interim_ protection, ranging from thirty days to sixty days, within which to obtain permanent copyright, the exact period depending upon the number of days elapsing after publication before deposit of the foreign copy in the Copyright Office. Thus a copy deposited on the day of publication will have thirty days in all within which to secure permanent copyright by the publication of the American-made edition, while a copy deposited on the thirtieth day after publication will have sixty days in all; but the failure to deposit the foreign copy within thirty days after publication, or the failure to publish an American-made edition within thirty days after such deposit, will forfeit the right to obtain copyright protection and throw the foreign work into the public domain, despite the _ad interim_ registration. When an American-made edition with notice of copyright can be published in America simultaneously with its publication abroad, _ad interim_ protection is of course rendered unnecessary; and such simultaneous publication is the simplest and best practice for publishers to adopt.

{Sidenote: Omission of copyright notice}

It may also be emphasized here that the notice of copyright can be omitted only from foreign-made copies and must be included in the American-made edition. The American publisher desiring to reprint a book published abroad in the English language within sixty days after publication, without consent of the copyright proprietor, must therefore a.s.sure himself, by inquiry from the Copyright Office, whether the work has been registered _ad interim_. The printing of an American copyright notice on the foreign edition in antic.i.p.ation of the publication of an American-made edition and the deposit of copies thereof within the statutory requirements is a questionable practice, as a failure to publish American-made copies in the United States, because of defective publis.h.i.+ng arrangements or a printers' or binders' strike, would make such notice a false notice of copyright. The copyright term in the case of such foreign work in the English language dates, it would seem, from the date of publication abroad rather than from the date of publication of the American-made edition; but this would be of importance only toward the expiration of the original term and in connection with the renewal term.

{Sidenote: Books only ad interim}

_Ad interim_ protection seems to be confined exclusively to a book as such, and therefore does not apply to articles in periodicals.

{Sidenote: American authors not thus protected}

It should be noted that an American author publis.h.i.+ng his work abroad is not benefited by either of these provisions respecting foreign works.

The provision regarding works in other languages is specifically confined to a work of foreign origin, that is, not by an American author; and he gains nothing, if his work is in English, from _ad interim_ protection. Thus an American author publis.h.i.+ng his work first in German in Berlin, must copyright and deposit an American-made edition of his German text in this country to obtain American protection, without which his work in German could be imported into this country without his consent, and an independent translation of his text into English and its publication in America could not be prevented.

{Sidenote: Exact conformity required in formalities}

In view of the exact prescription of the method of securing copyright, unless the statute is precisely complied with the copyright is not valid. Said Judge Sawyer, in 1875, in Parkinson _v._ Laselle: "There is no possible room for construction here. The statute says no right shall attach until these acts have been performed; and the court cannot say, in the face of this express negative provision, that a right shall attach unless they are performed. Until the performance as prescribed, there is no right acquired under the statute that can be violated." And in the case of the play "Shaughraun," Boucicault _v._ Hart, in 1875, Justice Hunt held, as regards copyrights in general: "Two acts are by the statute made necessary to be performed, and we can no more take it upon ourselves to say that the latter is not an indispensable requisite to a copyright than we can say it of the former." The Supreme Court laid down this general doctrine in Wheaton _v._ Peters, in reference to the statutes of 1790 and 1802, and the later statutes are most explicit on this point. In the same case of Wheaton _v_. Peters, Justice McLean, in delivering the judgment of the Supreme Court, held that while the right "accrues," so that it may be protected in chancery, on compliance with the first requirement of the prescribed process, it must be perfected by complying with the other requisites before a suit at law for violation of copyright can be maintained.

{Sidenote: Expunging from registry}

A false or unjustifiable entry of copyright may be expunged from the registry by court order, as was done in the English case _Re_ Share Certificate Book in 1908.

{Sidenote: British formalities}

The statutory formalities of copyright in other countries vary greatly.

In Great Britain copyright has been secured by first (or simultaneous) publication within the British dominions or under the "international copyright act." The law provided that a copy of the best edition of a book must be deposited in the British Museum, this giving basis for proof of publication, which deposit must be made within one month after publication if published within London, three months elsewhere in the United Kingdom, and one year in other parts of the British dominions; the failure to deposit did not forfeit copyright, but involved a fine; but under the international copyright provisions, deposit in the British Museum of a colonial or foreign work was not required, though useful as _prima facie_ evidence of publication. Four other copies of domestic books must be supplied to the universities of Oxford, Cambridge, Edinburgh and Dublin if demanded within twelve months from publication.

Registration at Stationers' Hall was necessary for books only as a prerequisite to an action at law against infringement, but was obligatory in the case of paintings, drawings and photographs. Copyright notice on a book was not required except to reserve the right of representation of a dramatic work, etc., though it has been customary for English publishers to print the phrase "All rights reserved" as the equivalent to the copyright notice. But copyright notice was required to protect sculpture, engravings and musical compositions and in respect to oral lectures.

{Sidenote: The new British code}

The new British code bases copyright for all published works on first publication within "the parts of His Majesty's dominions to which this Act extends" or as provided for in colonial or international arrangements--copyright of unpublished works depending upon British citizens.h.i.+p or residence at the time of making. Delivery of copies to the British Museum and on demand to the other libraries is required from the publisher of every book published in the United Kingdom, but on penalty of five pounds and the value of the book and not of forfeiture of copyright. The National Library of Wales is ent.i.tled to a sixth copy, in prescribed cla.s.ses of books. Registration is no longer made a condition or circ.u.mstance of copyright.

Most of the British colonies have followed the precedent of the mother country, with slight variation, in their domestic legislation. Canada and Newfoundland, following the precedent of the United States, require copyright notice in statutory form.

{Sidenote: Other countries}

France requires deposit of two copies upon publication, and registration is required prior to a suit for infringement. Germany requires the registration of the name of the author of anonymous or pseudonymous works as the condition for copyright, but otherwise grants copyright practically as natural right without requiring formalities. The greater number of copyright countries do not impose any formalities except for specific privileges as the right of translation, of representation or of reproduction in the case of periodical contributions; or for special subjects as works of art, musical compositions, telegraphic messages, where these are protected, and oral lectures. Deposit of copies is, however, generally required, either before putting the book on the market or before circulation, or upon publication, or else within a specified time after publication, ranging from ten days in the case of Greece to two years in the case of Brazil, while in several countries no specific time is mentioned. In Italy, if no deposit of a registered work is made within ten years, the copyright is considered to be abandoned.

The number of copies required varies in the several countries from one to six. In some countries specific formalities are required to establish the beginning of the term of protection for collective or posthumous works, etc., or in connection with the disclosure of the author's name on anonymous or pseudonymous works. Spain, Colombia and Panama, and Costa Rica have a curious provision that if a work is not registered within one year from publication the copyright is forfeited for ten years, at the end of which period it may be recovered by registration.

Canada and Newfoundland, following the United States precedent, Australia, Holland and the Dutch colonies, and Siam require manufacture within the country. In several countries penalty for failure to deposit is provided, the limit being usually the value of a book and a sum not exceeding 5, or in France 300 francs. The deposit of a photograph or sketch of a work of art is in many countries required for purposes of identification.

{Sidenote: International provisions}

International copyright throughout the countries of the International Copyright Union and the Pan American Union, if the Berlin and Buenos Aires conventions are ratified throughout, will depend, as now it depends for most countries, entirely on the formalities in the country of origin.

X

THE AMERICAN MANUFACTURING PROVISIONS

{Sidenote: Manufacturing provision of 1891}

In the American law of 1891, embodying the "international copyright amendment" which for the first time permitted the copyright in the United States of works by foreign authors not resident in this country, the copyright of books was conditioned on the manufacture within the United States, and this condition was made applicable also to American authors.

{Sidenote: Text in 1909 code}

The American code of 1909 follows this precedent in making manufacture within the United States a _sine qua non_ of copyright for printed books and periodicals, lithographs and photo-engravings, under the following provision (sec. 15), commonly cited as the manufacturing provision: "That of the printed book or periodical specified in section five, subsections (a) and (b) of this Act, except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protection under this Act, except as below provided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of type-setting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process, or photo-engraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States; which requirements shall extend also to the ill.u.s.trations within a book consisting of printed text and ill.u.s.trations produced by lithographic process, or photo-engraving process, and also to separate lithographs or photo-engravings, except where in either case the subjects represented are located in a foreign country and ill.u.s.trate a scientific work or reproduce a work of art; but they shall not apply to works in raised characters for the use of the blind, or to books of foreign origin in a language or languages other than English, or to books published abroad in the English language seeking _ad interim_ protection under this Act."

{Sidenote: Scope and exceptions}

This manufacturing provision requires that every "book" except the original text of a book of foreign origin, _i. e._, not by an American writer in a language or languages other than English, or a book published abroad in the English language seeking _ad interim_ protection, or a book in raised characters for the use of the blind, can obtain American copyright whether by an American or foreign author, only in case the type is set, the plates made and lithographic or photo-engraving text or ill.u.s.trations produced and the work printed and bound within the limits of the United States--inclusive, presumably, of the outlying dependencies. The provision extends to periodicals, though these are not subjected to the affidavit clause, and periodicals containing authorized copyrighted material are not prohibited from importation. The provisions extend also to lithographs or photo-engravings, issued separately as well as for book ill.u.s.tration, unless these represent foreign subjects or ill.u.s.trate a scientific work or reproduce a work of art.

{Sidenote: Changes 1891-1909}

The provision of 1909 differs from the provision of 1891 in requiring that a book should be from plates type-set as well as made, and be printed and bound, within the United States, in adding periodicals and by omitting photographs and dropping the word chromo, and including photo-engravings as well as lithographs. The inclusion of binding in the manufacturing provision met with especial opposition, on the ground that binding is not an integral part of, but an incidental addition to, a completed book.

{Sidenote: German-American instances}

The effect of these provisions, to cite specific instances, is that an original German text by a non-American author is exempt from the manufacturing provisions, but that a French translation or an English translation is not, and that an original German work by an American author must be manufactured in this country to obtain protection, and that the American author printing his work in English abroad may claim _ad interim_ protection but can obtain no substantial benefit from it.

In case a German-American citizen, or German resident of this country, writes a book in the German language and prints it first in Berlin, he can have no American copyright in the German edition; and if copies of such an edition, without copyright notice, should reach the United States previous to manufacture and publication of the work here, any one would have the right to reprint print it, and the work would be practically dedicated to the public, while the copyright notice could not be affixed to such foreign printed edition without violation of the law. If, however, the German work were a translation made by or for the author of a work written in English, the general copyright of the English work would cover the German edition, but the German copies could not then be imported.

{Sidenote: Dramas excepted}

A drama copyrightable as such under subsection (d) is not subject to the manufacturing provision, unless cla.s.sified as a book under subsection (a). A printed drama was held not to be subject as a book to the manufacturing provision in Hervieu _v._ Ogilvie, in the U. S. Circuit Court, by Judge Martin in 1909, and this decision under the old law is applicable to the new code.

{Sidenote: Exception of foreign original texts}

The exception of "the original text of a book of foreign origin in a language or languages other than English,"--drafted by the author of the present volume, introduced at the instance of the American (Authors) Copyright League, as the McCall bill with the a.s.sent of the representatives of the typographical unions responsible for the manufacturing provision,--was included to a.s.sure a real reciprocity in copyright with continental and other non-English nations. The exception is repeated toward the close of the section in the somewhat wider phrase "books of foreign origin in a language or languages other than English,"

which omits restriction to "the original text"; but it is probable that the second phrasing would be construed in conformity with the first, as the evident intention of the law.

{Sidenote: Exception of foreign ill.u.s.trative subjects}