« iepriekšējāTurpināt »
lord chancellor, holding that the perpetual right was not limited by the statute of Anne, would have remained in force.
Both of these decisions involved the copyright on “ Thomson's Seasons." Both of these cases were fully reported by Burrow in Burrow's King's Bench Reports, vol. 4, page 2303. The case of Donaldson v. Beckett is also reported, but not so fully, in Brown's Cases in Parliament, vol. 2, page 129. A curious error, which has misled many writers on this subject, crept into Brown's report of the case. He stated that the judges voted, six to five, against the doctrine of the perpetuity of copyrights at common law. A careful examination of the opinions of each one of the judges shows conclusively that Brown made the mistake of taking the vote of the judges, not on that question, but on the question of whether the common-law right was impeached by the Statute of Anne. On that question the judges did vote as he states, but on the question of the perpetụity of copyright at common law they voted as stated in Brown's report, seven to four, in favor of the doctrine of perpetual right. The term of the copyright owned by the universities of England was made perpetual by act of Parliament shortly after said decision of the House of Lords.
In France in times of the revolution, when property rights were keing assailed, it was said that "the most sacred, the most legitimate, the least attackable, the most personal of all property” is the right of an author to his works, so that we are not creating new property rights by giving a copyright to an author on his works, but we are simply giving him protection on the property right which he always had. The laws passed under the Constitution do not extend the natural right, but limit it. Constitutional provisions regarding copyrights and laws passed thereunder do not grant property rights, but limit them.
The first copyright statute ever passed in this country was passed by the legislature of Connecticut in 1783 at the solicitation of Noah Webster, who desired copyright protection for his spelling book. It is said that Mr. Webster then traveled from State to State and induced 12 of the 13 States—all except Delaware--to enact similar statutes. When the convention met and framed the Constitution of the United States copyright laws existed in 12 of the 13 States, but the requirements for the registration of copyrights differed greatly, making it burdensome to an author seeking to protect his work. The need of a law which would be effective in all the States was so apparent that a provision was incorporated in the Constitution, as follows: Congress shall have power
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. (Constitution, Art. I, par. 8.)
Congress and the courts have always given a liberal construction to the word " writings.” Mr. Justice Miller, in delivering an opinion of the Supreme Court in the case of Burrow-Giles Lithograph Company v. Sarony (111 U. S.), says:
The first Congress of the Unted States, sitting immediately after the formation of the Constitution, enacted that the "author or authors of any map, chart, book, or books, being a citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing, and vending the same for the period of fourteen years from the recording of the title thereof in the clerk's office, as afterwards directed.” (1 Stat. L., 124, 1.)
This statute not only makes maps and charts subjects of copyright, but mentions them before books in the order of designation. The second semti in of an act to amend this act, approved April 29. 1802 (2 Stat. L., 171), enarts that from the 1st day of January thereafter, he who shall invent and desim, engrave, etch, or work, or from his own works shall cause to be designed and engraved, etched, or worked, any historical or other print or prints shall have the same exclusive right for the term of fourteen years from recording the title thereof as prescribed by law.
By the first section of the act of February 3, 1831 (4 Stat. L., 436), entitled "An act to amend the several acts respecting copyright,” musical compositions and cuts, in connection with prints and engravings, are added, and the period of protection is extended to twenty-eight years. The caption or title of this act uses the word “ copyright” for the first time in the legislation of Congress.
The construction placed upon the Constitution by the first act of 1790 and the act of 1802 by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century it is almost conclusive.
The Sarony case involved the right to make copies of photographs, and Mr. Justice Miller held that photographs were protected by the act of 1802. In referring to the acts of 1790, 1802, and 1831, he says:
These statutes certainly answer the objection that books only, or writing in the limited sense of a book and its author, are within the Constitutional provision. Both these words are susceptible of a more enlarged definition than this. An author in that sense is “ he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” (Worcester.) So, also, no one would now claim that the word “writing” in this clause of the Constitution, though the only word used as to subjects in regard to which authors are to be secured, is limited to the actual script of the author and excludes books and all other printed matter. By “writings" in that clause is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writing, 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 in the act of 1802 is probably that they did not exist, as photography as an art was then unknown, and the scientific principle on which it rests and the chemicals and machinery by which it is operated have all been discovered long since that statute was enacted.
We entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.
The conferences held for the purpose of formulating a copyright bill, to which the President referred in the message from which ! have quoted, met several times; twice, I think, in the year 1995, and once or twice in the year 1896. These meetings were not in the nature of conventions. They were conferences and were attended only by those who were concerned in the protection of the rights of an author. The following organizations were represented:
List of associations invited to take part and the delegates nominated to be pres
ent at the conference on copyright, together with other participants.
American (Authors') Copyright League: Edmund Clarence Stedman •:', president; Richard R. Bowker, vice-president; Robert Underwood Johuson !:, secre tary ; Edmund Munroe Smith, acting secretary (not present).
National Institute of Arts and Letters: Edmund Clarence Stedman ';', president; Brander Matthews 1,4.
DRAMATISTS AND PLAYWRIGHTS.
American Dramatists Club: Bronson IIoward, president; Joseph I. C. Clarke , first vice-president; Harry P. Mawson?,?, chairman committee on legislation; Joseph R. Grismer', committee on legislation ; Charles Klein?
Association of Theatre Managers of Greater New York: Charles Burnham, first vice-president; Henry B. Harris', secretary.
ARTISTS: PAINTERS. SCULPTORS, ARCHITECTS.
American Institute of Architects: Glenn Brown, secretary.
National Sculpture Society: Daniel (hester Freuch", president; Karl Bitter ?,. vice-president.
Society of American Artists : John La Farge', president; John W. Alexander 1,5
Manuscript Society : Miss Laura Sedgwick Collins? (charter member), F. L. Sealy
American Publishers' Copyright League: William W. Appleton, president; George Haven Putnam *;*secretary ; (harles Scribner 1.", treasurer; Stephen II. Olin ?3. counsel.
Association of American Directory Publishers: W. II. Lee?s, president: W. H. Bates, secretary; Alfred Lucking, counsel; Everett S. Geer?, president Hartford Printing ('ompany : William E. Murdock 3, trustee of the Association of American Directory Publishers; Ralph L. Polk ?, trustee of the Association of American Directory Publishers; S. T. Leet 3.
PUBLISHERS OF NEWSPAPERS AND MAGAZINES.
American Newspaper Publishers' Association: Don C. Seitz ",", acting chairman copyright committee; John Stewart Bryan ',. copyright committee: Louis M. Duvall 1,2, copyright committee; Thos, J. Walsh ?, at the request of Mr. Seitz.
Periodical Publishers' Association of America: Charles Scribner 1,2.
PUBLISHERS OF ARTISTIC REPROD ?CTIONS : LITHOGRAPHERS, PHOTOGRAPHERS.
National Association of Photoengravers: B. W. Wilson, jr.?.
Photographers' ('opyright League of America: B. J. Falk, president; Pirie MacDonald; A. B. Brownes, counsel.
Print Publishers' Association of America: W. A. Livingstone, president; Benjamin Curtis 3, secretary; George L. (anfield, counsel.
Reproductive Arts ('opyright Legue (Lithographers' Association--East): Robert M. Donaldson, president; Edmund B. Osborne?, vice-president; A. Beverly Smith, secretary ; Fanueil D. S. Bethune 3,5, counsel.
PUBLISHERS OF MUSIC.
Music Publishers' Association of the United States: J. F. Bowers 2,3, presi. dent; (harles B. Bayly 3, secretary; George W. Furniss, chairman copyright committee; Walter M. Bacon, of copyright committee; Nathan Burkan 2,3, counsel; A. R. Serrens, counsel ; Leo Feist ; Isidore Witmark; R. L. Thomæ 2,3 (Victor Talking Machine Company, of Philadelphia).
PRINTERS AND LITIIOGRAPHERS.
United Typothetae of America : Isaac H. Blanchard, of executive committee; Chas. W. Ames?, ?.
International Typographical Union: J. J. Sullivani, chairman I. T. U. copyright committee; P. H. McCormick, president, and George J. Jackson, organizer, of New York Typographical Union. No. 0.
Central Lithographic Trades Council: W. A. Coakley :.
National Educational Association: George S. Davis', associate city superintendent of schools; Claude G. Leland ?, librarian board of education of New York.
American Library Association : Frank P. Hill, president; Arthur E. Bostwick.
American Bar Association Advisory Committee: Arthur Steuart",;, chairman; Edmund Wetmore?, Frank F. Reed (not present).
Association of the Bar of the City of New York-Advisory committee: Paul Fuller 3, chairman; William G. Choate, John E. Parsons, John L. Cadwalader, Edmund Wetmore?, Henry Galbraith Ward, Arthur H. Masten. (Of this committee, appointed after the second conference, only Mr. Fuller was present.)
International Advertising Association : Will Phillip Hooper ,, James L. Steuart?, counsel.
The Sphinx Club; Will Phillip Hooper 1,9.
OTHERS PRESENT, BUT NOT FORMALLY PARTICIPATING.
Samuel J. Elder, of Boston; André Lesourd", of New York; A. Bell Malcomson?, of New York; Ansley Wilcox, of Buffalo; A. W. Elson ?,', of Boston; Gen. Eugene Griffin , of New York; Charles H. Sergel', of Chicago.
Librarian of Congress, Herbert Putnam.
Commissioner of Patents, Frederick I. Allen (was not present, but submitted written suggestions).
Department of Justice, Henry M. Hoyt®, Solicitor-General (present, but not formally participating); William J. Hughes 2,3, of the Solicitor-General's office (present, but not formally participating). Treasury Department, Charles P. Montgomery, of the Customs Division.
NOTE.—Persons marked”, , or were present only at the sessions thus indicated. The absence of a mark following a name indicates attendance at all three sessions.
As a result of the conferences, a bill was prepared by the Librarian of Congress with the assistance, among others, of the copyright committee of the American Bar Association and the copyright committee of the Association of the Bar of the City of New York. That bill was introduced in this House May 31, 1906. The Senate and House Committees on Patents decided to give joint hearings upon the bill in order to save time, as it was realized that the hearings would be protracted and a great number of people would desire to be heard. Hearings were had on June 6, 7, 8, and 9, and on December 7, 8, 10, and 11, 1906. Every person who desired to be heard was given the fullest opportunity to present his views orally, and further time was given for the presentation of written arguments and amendments. The bill upon which the hearings were had was regarded by the committee not as the bill of the committee nor of any individual member thereof, but as a bill prepared by those having an affirmative interest in copyright legislation.
Mr. Herbert Putnam, the Librarian of Congress, in his introductory remarks at the first hearing given by the Senate and House committees, said:
We would have no misunderstanding as to what this bill is. It is a bill resulting from the conference, but it is not a conference bill, for the conference did not draw it, nor did it by explicit vote or otherwise determine its precise provisions. It is rather a Copyright Office bill. The office submits it as embodying what, with the best counsel available, including the conferences, it deems worthy of your consideration.
The committee gave ample notice of the hearings and gave full opportunity to all who desired to appear in opposition to any part of the bill to be heard. As a result of the hearings, the bill was redrafted by the gentleman who framed it, and that last draft has been modified in many respects by your committee, particularly in the line of guarding the rights of the public.
Before proceeding to deal with the details of the bill it may be well to speak in somewhat general terms of one or two very important changes we propose to make in existing law. Under existing law many important copyrights are rendered void ab initio by the slightest unintentional failure to comply with certain requirements of law. Existing law provides that the copyright shall be invalid unless the title of the book, etc., shall be filed on or before the day of first publication in the office of the Librarian of Congress. There must also, in order to make the copyright valid, be deposited two complete copies of the book or other article, not later than the day of first publication. The failure of a shipping clerk to see that the copies go seasonably forward to Washington may destroy a copyright of great value, and very many copyrights have been lost because by some accident or mistake this requirement was not complied with.
The injustice of imposing such an excessive penalty on any failure to so deposit seems to have been recognized by Congress at one time, and by an act approved March 3, 1893, it was provided that any author who had failed to deliver within the time limited—that is, before publication-but who had so delivered the copies at any time before the 1st day of March, 1893, should be entitled to a copyright. This protected from forfeiture the existing copyrights, but it in no way modified the penalty of forfeiture for any failure to comply with the rigid requirement of the law after the said 1st day of March. It has well been said that if it really is essential that copies of a copyrighted book should be deposited at Washington not later than the day of publication, why should Congress excuse authors who have falied for a year, or ten or twenty or twenty-seven years, to make the deposit?
The act of 1790 was more liberal in this respect than any act ever passed since, for that provided that the copies might be delivered to the Secretary of State at any time within six months after publication. The bill reported by your committee provides that after copyright has been secured by such publication and notice thereof shall be deposited in the Copyright Office, or in the mail, addressed to the Register of Copyrights, two complete copies of the best edition, and should the copies not be promptly deposited the Register of Copyrights may at any time after publication, upon written demand, require the proprietor of the copyright to deposit them, and in default of the deposit of the copies within one month from any part of the United States except an outlying territorial possession of the United States, or within three months from any outlying territorial possession of the United States, or from any foreign country, the proprietor of the copyright shall then fórfeit said copyright.
This, it seems to your committee, gives ample protection to the copyright proprietor against any unintentional failure to comply