of whatever the records of his office show toward a compliance with the terms of the law. The rights of the party holding a copyright, therefore, depend wholly on whether he has in fact complied with the terms of the law or not, and not upon the fact that he has obtained a certificate from the librarian." (See also Saake v. Lederer, 174 Fed. 135; Osgood v. A. S. Aloe, 83 Fed. 470.)

It is absurd, therefore, to argue that the registration of a claim to copyright confers any right upon the claimant. The best characterization of the effect of copyright registration is in Eggers v. Sun Sales Corporation (265 Fed. 373). at page 374 (Circuit Court of Appeals, Second Circuit):

"In form statutory copyright is effected by the act of the person claiming the privilege. What is registered is a 'claim to copyright.' (Act March 4, 1909,. c. 320, sec, 10, Comp. St. sec. 9531.) There is no provision for examination, as in the case of patents, and probably for that reason the act (sec. 3, Comp. St. sec. 9519) declares that protection is extended to 'all the copyrightable component parts of the work copyrighted.' The inference is that there may be in that for which claim is made much to which the protection of the act can not extend." To secure a valid copyright, the following facts must be established: First. That the author of the work is a citizen of the United States, or that he was domiciled within the United States at the time of the first publication of his work, or that he is a citizen or subject of a foreign state or nation granting reciprocal copyright protection to American citizens, or that such state or nation is a party to an international agreement providing for reciprocity in the granting of copyright. (Copyright act, sec. 8; Bong v. Campbell, 214 U. S. 245.) Second. That the work is an original work, i. e., that the author has created by his own skill, labor, and judgment neither directly copying nor evasively imitating the work of another. (Lithographic Co. v. Sarony, 111 U. S. 60; Hoffman v. Le Traunik, 209 Fed. p. 379; Falk v. City Item Co., 79 Fed. 321; Warner v. Encyclopedia, 154 Fed. 832.)

If the suit is brought by the assignee, he must show how he became proprietor and that he has a lawful right to bring the suit. (Chicago Music Co. v. Butler,

19 Fed. 758, 759.)

"When a party goes into a court of law or equity seeking protection of a copyright, he must show that he is the author of the work or that his title is derived from one sustaining that relation to the publication.' (Osgood v. Alie, 83 Fed. 470, 471; Yuengling v. Schile, 12 Fed. 100, 101; Crown Feature Film v. Levy, 202 Fed. 805; Saake v. Lederer, 174 Fed. 136; Jonge v. Breuken, 191 Fed. 35.) These facts must be established in every suit for copyright infringement. Since the copyright office makes no examination of the title or subject matter of the copyright, all that a purchaser buys from a registrant is a "claim to copyright," the scope, force, and validity of which must thereafter be established in a court of law. (See Ferris v. Frohman, 223 U. S. 424.)

Works not reproduced in copies for sale, such as manuscripts of dramas and paintings, are protected against public performance, exhibition, and duplication at common law. (Palmer v. De Witt, 47 N. Y. 532; Werckmeister v. The American Lithographic Co., 134 Fed. 321.)

Motion-picture producers have been buying unpublished dramas not only here but in England and in other parts of the world, and the imaginary difficulties conjured up by the users at these hearings have not been realized. Motionpicture producers and mechanical reproducers of musical compositions are buying rights from subjects and citizens of countries participating in the Berne convention, where there is no compulsory registration. It is thus seen that the absence of registration does not produce any hardship and does not interfere with the purchaser of works in this country or abroad. The doing away with the formalities of registration, therefore, should not be an impediment to our I entering into the Berne convention.

The Berne convention is not a league in the common acceptation of that term. It does not provide for joint or common action to enforce the provision of the convention.

It does not provide for continuous cooperation.

It does not provide for any further meetings in which any action may be taken that is binding on the members.

It only contemplates conferences of delegates of the member nations to consider revision, but no change shall go into effect until approved by all the members It provides for no punitive measures for violations of the provisions.

It establishes no apparatus for the discharge of any executive or supervisory functions.

It creates only a joint bureau, which has no other function but to collect and distribute information.

The convention is no more than a collective agreement between the signatory powers. It is of no more effect than separate agreements between the same powers would be.

No question can arise that could not arise under separate treaties.

If the United States adhere to the convention, an American author will be entitled to protection in Italy. Any question arising in respect to the right or protection in Italy will be exactly the same as if the same provisions were embodied in a separate treaty between the United States and Italy. No appeal can be taken to the convention; the other members of the convention will not be parties to any controversy arising in one country and have no right to interfere in any such controversy.

The provision in the Berne convention permitting any nonunion country to become a member upon declaring his adhesion can not be said to be a serious objection to the adhesion of the United States. In the convention for the protection of industrial property to which the United States declared its adhesion in 1912 and the ratification of which was proclaimed by the President on April 20, 1913, contains an identical provision.

Article 16 reads:

"The countries which have not taken part in the present convention shall be permitted to adhere to it upon their request.

"Notice of adhesion shall be made through diplomatic channels to the Government of the Swiss Confederation, and by the latter to all the others.

"It shall entail complete adhesion to all the clauses and admission to all the advantages stipulated by the present convention, and shall take effect one month after the notification made by the Government of the Swiss Confederation to the other unionist countries, unless a later date shall have been indicated by the adhering country." (38 Stat. L., p. 1645.)

A provision to the same effect is also contained in the International Radiotelegraphic Convention (art. 16), the ratification of which was proclaimed July 9, 1913. (37 Stat. L., p. 1692.)

The great advantage that authors of union countries derive from the adhesion of their country to the Berne convention is in the fact that they are able to secure copyright protection in all countries of the union without being put to the trouble of going from country to country and taking in each foreign country the steps necessary to secure copyright protection.

There is practically only one provision of the Berne convention which would require a change of the present American copyright law as a condition of adhesion, and that is the provision which entitles the citizen of each union country to protection in each of the countries without the necessity of any formality.

In the matter of formalities, the position of the United States has undergone a noticeable change since the enactment of the copyright law of 1909.

That law eliminated the previous requirement that the title of the work shall be deposited in the copyright office, before publication in this and any foreign country, and that before such publication two copies of the work shall be deposited in the copyright office. (Sec. 1956 of the Revised Statutes.)

Under the act of 1909, copyright is secured by the mere publication of the work with notice of copyright. (Sec. 9, copyright act 1909.)

The deposit of copies is no longer a condition of acquiring copyright. It is now only a condition precedent to the maintenance of any action for the enforcement of the rights secured by the copyright. (Sec. 12, copyright act 1909.) The notice of copyright is only required on published works. (Sec. 9, act 1909.)

A work may be copyrighted as an unpublished work, and in that case a notice of copyright is not required on the copy deposited for the purpose of copyrighting such unpublished work. (Sec. 11.)

The requirement as to the notice of copyright is made less strict by the provision that the omission of the notice from one or more copies by accident or omission shall not invalidate the copyright. (Sec. 20.)

Another departure from the requirement of formalities is found in the Fourth International American Convention on Literary and Artistic Copyright.

This convention was between the United States and several Central and South American Republics, signed at Buenos Aires August 11, 1910, and proclaimed by the President of the United States July 13, 1914. (Copyright Office Bulletin No. 14; Separate Copyright Office Circular 55; 38 Stat. L. 1785.)

This convention follows the principles of the Berne convention and establishes a true international copyright as between the signatory States in that it provides that a copyright acquired in accordance with the laws of any one of the States shall be protected in all the others without the necessity of complying with any other formality, provided only that there shall appear in the work a statement indicating a reservation of the property right, article 3 thereof providing:

"The acknowledgment of a copyright obtained in one State, in conformity with its laws, shall produce its effects of full right in all the other States without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right.'

Subject to the minimum of rights declared in the convention, the extent of protection is governed by the laws of the State where protection is sought, without those rights being allowed to exceed the term of protection granted in the country of origin. This convention has been ratified or adhered to by United States, Dominican Republic, Guatemala, Honduras, Panama, Nicaragua, Ecuador, Bolivia, Brazil, Costa Rica, Paraguay, and Salvador.

It has been suggested by Mr. Paine, of the Victor Talking Machine Co., that that convention is of no significance because Congress has not enacted machinery for the execution of that convention.

In that he is in error. The convention is self-executing. It provides under

Article 6:

"The authors or their assigns, citizens, or domiciled foreigners shall enjoy in the signatory countries the rights that the respective laws accord without those rights being allowed to exceed the term of protection granted in the country of origin."

And President Wilson, in his proclamation of this treaty, said:

Now, therefore, be it known that I, Woodrow Wilson, President of the United States of America, have caused the said convention to be made public, to the end that the same and every article and clause thereof, may be observed and fulfilled with good faith by the United States and citizens thereof."

This convention is a treaty; has been so proclaimed by the President; and as a treaty it has the full force of law, and having been enacted later than the statutes of 1909, it supersedes and supplements the statutes.

Regardless of the date of the passage of the statute in question or of the ratification and subsequent proclamation of the treaty in question, where they relate to the same subject, the courts will always attempt to so construe them as to give effect to both. (The Bound Brook, 146 Fed. 160, 165; Whitney v. Robertson, 124 U. S. 190, at 194; Johnson v. Browne, 205 U. S. 309, at 321.)

The Supreme Court definitely held that between treaty and act of Congress the one later in date prevails. (Sanchez v. United States, 216 U. S. at 176.) As the court stated in Hijo v. United States (194 U. S. 315), at page 324: 66* * * it is well settled that in case of a conflict between an act of Congress and a treaty, each being equally the supreme law of the land, the one last in date must prevail in the courts. (The Cherokee Tobacco, 11 Wall. 616, 621; Whitney v. Robertson, 124 U. S. 190, 194; United States v. Lee Yen Tai, 185 U. S. 213, 221.)"

In Hennebique Construction Co. v. Myers et al. (172 Fed. 869, Circuit Court of Appeals for the Third Circuit), it was said (p. 887):

"A treaty is a law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. (Head Money cases, 112 U. S. 580, 598; 5 Sup. Ct. 247 28 L. Ed. 798.)"

One of the provisions of the Berne convention which has been pointed out as objectionable is the clause in article 4 that the enjoyment of the rights in the country where protection is claimed is independent of protection in the country of origin of the work.

It is apparent, however, from a subsequent treaty that the United States does not take the position that such a clause is objectionable. In a copyright treaty concluded with Hungary in 1912, ratified July 23, 1912, proclaimed October 16, 1912, an identical clause is contained in article 2, where it is said that

"The enjoyment and the exercise of the rights secured by the present convention are subject to the performance of the conditions and formalities prescribed by the laws and regulations of the country where protection is claimed under the present convention; such enjoyment and such exercise are independent of the existence of protection in the country of origin of the work."

(The treaty is published in 37 Stat. L., p. 163.)

In this respect, the international copyright provisions of the act of March 3, 1891 (sec. 13, 26 Stat. L., 1110), and of the act of 1909 are significant.

The act of March 3, 1891 (sec. 13, 26 Stat. L. 1110), provided that— "The act shall only apply to a citizen or subject of a foreign State or nation. "1. When such foreign State or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as (to) its own citizens; or

"2. When such foreign State or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement."

Section 8 of the act of 1909 provided that

"The copyright secured by this act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign State or nation only:

(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or

"(b) When the foreign State or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States, the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this act, or by treaty; or

(c) When such foreign State or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto." Subdivision (b) does not require that the foreign State or nation shall grant to citizens of the United States the benefit of copyright on identically the same basis as to its own citizens. The word "substantially" is used, and not the word "identical" or "similar," clearly indicating that the foreign State or nation need not grant, in every detail, the same protection to American citizens as the United States grants.

It is to be noted that the act contemplates an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.

The extent of "the reciprocal conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time, as the purposes of this act may require.

It is to be noted that the act contemplates as the source of the rights granted by foreign countries and also as the source of the rights granted by the United States not only laws, but treaties, conventions and agreements, and particularly an international agreement, providing for reciprocity in the granting of copyrights to which the United States may become a party.

It speaks of the rights which the foreign nation "grants, either by treaty, convention, agreement or law" and of the rights granted by the United States to the foreign author "either under this act or by treaty.

It is also significant that the existence in an international agreement of a provision, permitting the United States to become a party thereto, is mentioned as one of the grounds for extending American copyright to the citizens of the nations who have concluded such agreement.

This particular clause clearly shows that the future adhesion by the United States to such international agreements was considered a probability.

The United States has entered into many treaties with foreign nations for the purpose of providing mutual potection of the rights of citizens of the countries that were parties to such treaties in their literary and artistic works, inventions, designs, trade-marks, and trade names.

Treaties with certain foreign countries relating to copyright were concluded as follows:

Germany, April 15, 1892. (27 Stat. pp. 1021, 1022.) Spain, December 10, 1898, proclaimed April 11, 1899. 1760, 1761, 1762.)

China, October 8, 1903, proclaimed January 13, 1904. 2217.)

Japan, November 10, 1905, proclaimed May 17, 1906. Articles I and II of this convention provide:

(30 Stat. pp. 1754,

(33 Stat. pp. 2208 to

(S. Doc. 357, p. 1037.)

"ARTICLE I

"The subjects or citizens of each of the two high contracting parties shall enjoy in the dominions of the other, the protection of copyright for their works of literature and art as well as photographs, against illegal reproduction, on the same basis on which protection is granted to the subjects or citizens of the other, subject, however, to the provisions of Article II of the present convention.

"ARTICLE II

"The subjects or citizens of each of the two high contracting parties may without authorization translate books, pamphlets, or any other writings, dramatic works, and musical compositions, published in the dominions of the other by the subjects or citizens of the latter, and print and publish such translations." Hungary, January 30, 1912, proclaimed October 16, 1912. (37 Stat. p. 163.) A trade-mark convention was concluded by the United States with Belgium on December 20, 1865, ratified by the Senate on April 12, 1869; proclaimed by the President on July 30, 1869. (S. Doc. 357, 61st Cong., 2d sess., p. 86.)

On April 7, 1884, a further trade-mark convention was concluded with Belgium which was ratified June 12, 1884, and proclaimed July 9, 1884. (S. Doc. 357, p. 104.)

A trade-mark convention was concluded with Austria-Hungary on November 25, 1871; ratified January 18, 1872; proclaimed June 1, 1872. (S. Doc. 357, p. 47.)

Trade-mark conventions were also concluded with the following countries: Brazil, September 24, 1878, ratified January 20, 1879, proclaimed June 17, 1879. (S. Doc. 357, p. 146.)

France, ratified April 19, 1869, proclaimed July 6, 1869. (S. Doc. 357, p. 534.) Madrid, April 15, 1891. (27 Stat. p. 959.) Denmark, proclaimed October 12, 1892. Guatemala, ratified January 27, 1902, proclaimed April 11, 1902. (S. Doc. 357, p. 875.)

(27 Stat. p. 963.)

Russia, ratified June 22, 1874, proclaimed November 24, 1874. (S. Doc. 357, p. 1525.)

Rumania, ratified May 4, 1906, proclaimed June 25, 1906. (S. Doc. 357, p. 1510.)

A commercial treaty was concluded with China on October 8, 1903, ratified on December 18, 1903, and proclaimed January 13, 1904. Article IX of this treaty provided for the protection of trade-marks; Article X for the protection of patent rights. (S. Doc. 357, pp. 261, 266, 267.)

A convention for the protection was concluded with Germany, ratified April 15, 1909, proclaimed August 1, 1909. (S. Doc. 357, p. 578.)

A trade-mark convention with Japan was ratified February 1, 1897; proclaimed March 9, 1897. (S. Doc. 357, p. 1037.)

A copyright convention with a number of Central American countries was concluded at Mexico on January 27, 1902, ratified on January 31, 1908, and proclaimed on April 9, 1908. (S. Doc. 357, p. 2058.)

This convention is known as second Pan American Convention, 1902, between the United States and certain Central American Powers, signed at the City of Mexico, January 27, 1902, proclaimed by the President of the United States, April 9, 1908. (Copyright Office Information Circular No. 39, 35 Stat. L. 1934.) This convention followed the general lines of the convention at Berne. The signatory States constituted themselves into a union for the purpose of recognizing and protecting literary and artistic property. The protection accorded was that granted by the domestic law of the country where protection was sought. The term of protection was not to exceed that granted in the country of origin. A necessary formality to secure protection was the filing of a petition claiming the right and the deposit of two copies of the work and additional copies for each of the countries in which protection was desired.

This convention was ratified by the United States, Guatemala, Salvador, Costa Rica, Honduras, and Nicaragua.

By Article I of this convention the signatory States constituted themselves into a

"Union for the purpose of recognizing and protecting the rights of literary and artistic property * in conformity with the stipulations of the present

convention."

*