Addendum No. 2

OPINIONS OF THE ATTORNEYS-GENERAL AND OF THE TREASURY DEPARTMENT-COPYRIGHT ACT OF MARCH 4, 1909

CONTENTS

(a) ATTORNEYS-GENERAL OPINIONS; arranged by date:

No. 1, Nov. 17, 1909, Importation of Copyrighted Books, pp. 123-127.

No. 2, Dec. 22, 1909, Labels and Prints for Articles of Manufacture, pp. 127-130.

No. 3, Jan. 27, 1910, Post-Card Lithographs, pp. 131-136.

No. 4, Feb. 3, 1910, Renewal and Extension of subsisting copyrights, pp. 136-142.

No. 5, Feb. 9, 1910, Deposit of complete Book required, pp.

142-144.

No. 6, March 1, 1910, Reimportation of copyrighted Book rebound abroad, pp. 144–146.

No. 7, March 19, 1910, Copyright Proclamation, pp. 146–149. No. 8, May 2, 1910, Typewritten copies of a Book, pp. 149–152. (b) Treasury Department DECISIONS:

No. 1, Jan. 25, 1910, Importation of a Book upon abandonment of Copyright, p. 152.

No. 2, June 23, 1910, Importation of translation of American copyrighted Books, p. 153.

(T. D. 30136)

IMPORTATION OF COPYRIGHTED BOOKS

Section 31 of the act of March 4, 1909, prohibits the importation of any book copyrighted in the United States during the existence of such copyright, regardless of the law under which the copyright was obtained, unless the book was produced in accordance with the manufacturing provisions of section 15 of the copyright act.

TREASURY DEPARTMENT, November 24, 1909 SIR: Referring to your letter of the 28th ultimo, requesting instructions relative to certain religious books entitled "Key to Heaven," imported by the C. Wildermann Company per steamship Lapland, October 5, 1909, covered by entry No. 246131, which books have been returned by the appraiser as an illegal importation in violation of section 31 of the copyright law effective July 1, 1909, I have to advise you that the matter was submitted to the Attorney-General for an expression of his views, and to inclose herewith for your information a copy of the Attorney-General's opinion dated the 17th instant.

The Attorney-General holds that, the prohibition against importations contained in section 31 of the act of March 4, 1909, applies to every American copyright in a book regardless of the law under which the copyright was obtained.

The books in question were not produced in accordance with the manufacturing provision of section 15 of the copyright act and the Department therefore holds that they are not entitled to importation, and you are hereby instructed to refuse entry of the same and to take appropriate action under section 32 of the copyright act.

Respectfully

(70199.)

COLLECTOR OF CUSTOMS, New York

CHARLES D. HILLES

Assistant Secretary

Nov. 17, 1909

DEPARTMENT OF JUSTICE

Washington, November 17, 1909

SIR: I have the honor to acknowledge the receipt of your letter of the 11th instant, in which you state the following facts:

On October 5, 1909, there arrived at the port of New York per steamship Lapland certain books consigned to the C. Wildermann Company. These books were copyrighted by H. L. Kilner & Co. on January 5, 1909, and their importation was authorized by the copyright proprietor. They were printed from type set and plates made in the United States, and the printed sheets were sent to Belgium and there bound, and they were then reimported in the finished condition. The appraiser has reported that their importation is illegal under section 31 of the copyright act of March 4, 1909, in that they were not bound in the United States, and for that reason they have been detained by the collector; and you ask my opinion whether or not the holding of the appraiser is correct.

The portion of section 31 of the act of March 4, 1909 (35 Stats., 1082), here material, reads as follows:

That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this act, or any plates of the same not made from type set within the limits of the United States, or any copies thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in accordance with the provisions of section fifteen of this act, shall be, and is hereby, prohibited. Section 5 of this act provides 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 cyclopædic works, directories, gazetteers, and other compilations; (b) periodicals, including newspapers; and nine other classes are mentioned therein.

Section 15, which is referred to in said section 31, provides that of the printed book or periodical specified in section 5, subsections (a) and (b)—

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 typesetting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process or photo-engraving process, then by a 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. (35 Stats., 1078.)

My attention has been called to two opinions from this Department construing and applying a similar provision in the copyright act of 1891 (26 Stats., 1107), ɔne by Solicitor-General Conrad (21 Op., 159) and the other by Attorney-General Griggs (23 Op., 371), which, it is supposed, have some bearing upon the question here presented. By section 3 of the said act of 1891 section 4956 of the Revised Statutes was amended so as to read as set forth therein, and one of the necessary prerequisites therein prescribed for securing a copyright was that the applicant should, not later than the date of publication in this or any foreign country, deliver at the office of the Librarian of Congress, at Washington, or deposit in the mail within the United States, addressed to the Librarian of Congress, two copies of the book or thing sought to be copyrighted, which, in the case of a book, should be printed from type set within the limits of the United States, and it was further provided:

During the existence of such copyright the importation into the United States of any book * * ** so copyrighted, or any edition or editions thereof, or any plates of the same not made from type within the limits of the United States, shall be, and it is hereby, prohibited.

set

*

*

*

In the first opinion above mentioned the facts apparently were that American owners of an American copyright obtained on an American literary work before the passage of the act of 1891 were seeking, under that act, to prevent the importation of an unauthorized foreign edition, and Solicitor-General Conrad held that the above-quoted provision was applicable and prohibited their importation, although the copyright was not issued under said act of 1891.

In the latter opinion, the facts were that Harper & Bros. were endeavoring to import an eighth edition of Liddel & Scott's Greek-English Lexicon, which had been copyrighted in the United States under the copyright laws existing before the passage of the act of 1891, said importation consisting of the folded and unstitched sheets, designed to be stitched and bound in volumes in this country, but which had not been printed from type set within the limits of the United States; and Attorney-General Griggs held that the prohibition contained in section 56, Revised Statutes, as amended by said act of 1891, did not pro

hibit the importation because the copyright was procured under the copyright law as it existed before said amendment was made.

While there was a difference in the facts presented, yet it is difficult to draw any distinction between the principles involved in these two opinions. The question answered in the first was “whether section 3 of said act (of 1891) is applicable to books copyrighted prior to the passage of said act," and precisely the same question was presented and answered in the second opinion. But although doubt was expressed in the latter as to the correctness of the result reached in the former, yet it was suggested that a distinction arose from the fact that in the former opinion the statute was invoked to protect an American copyright against the importation of a piratical edition, while in the latter the statute, if applied, would prevent an importation sought to be made by the owner himself of the American copyright.

The result was, if the opinions were sufficiently consistent to stand together, that the owners of an American copyright obtained under laws existing before the passage of the act of 1891 received the benefits arising from section 3 of said act, while upon them were not imposed the burdens which were made to accompany those benefits. However, the opposite conclusions reached in those opinions was manifestly the result not of a difference in the principles involved, but a difference in the process of reasoning. In the former opinion it was held in substance that inasmuch as section 3 was an amendment of section 4956, Revised Statutes, it applied to all copyrights procured thereunder, before as well as after the amendment, although it could not have a retroactive effect as to importations of books made before the passage of the amendment, while Attorney-General Griggs based his conclusion upon the peculiar language of section 4956, Revised Statutes, as amended, holding that the language “during the existence of such copyright, the importation into the United States of any book, etc., so copyrighted," so restricted the clause in question as to make it apply only to copyrights issued under the act as amended.

I am inclined to think that, in so holding, due consideration was not given to the fact that the words upon which special stress was laid were, by the act, made a part of said section 4956, Revised Statutes, and thus a part of the general copyright law, and were therefore intended to apply to all copyrights issued thereunder, regardless of whether issued before or after the passage of the act of 1891.

But I do not regard either of these opinions as having any special bearing upon the question now in hand, inasmuch as the language of section 31 of the act of March 4, 1909, does not admit of the construction that was placed upon section 3 of the act of 1891 by Attorney-General Griggs. Said section 31 provides that—

During the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this act,