works, a proclamation could be issued to impose corresponding conditions or restrictions on that country when deemed desirable. It could be expected that only a few proclamations denying or restricting protection in regard to particular countries would need to be issued under this alternative, while the present system has necessitated the issuance of a large number of proclamations extending protection to designated countries. B. OBSERVATIONS CONCERNING THE ALTERNATIVES Leaving aside those works originating in foreign countries which will be protected in any event by virtue of a treaty to which the United States adheres, certain observations may be made regarding the alternative bases for the protection of other foreign works. 1. The present system of requiring proclamations for the extension of protection to works originating in various foreign countries has proved to be cumbersome in operation: some 40 proclamations have been issued since 1909 extending protection to 47 countries. This does not include 15 proclamations extending the time for compliance with formal requirements because of wartime disruption and 3 proclamations terminating such time extensions, nor does it include the 16 proclamations issued before 1909. It should also be noted that the works originating in a number of other countries are given protection by virtue of their membership in the Universal or Buenos Aires Copyright Conventions although no proclamations have been issued with respect to those countries except the general proclamations of the effectiveness of those Conventions. And conversely, some of the proclamations relate to countries that are also members of one or both of those Conventions. The result of all this is that the determination of the status of works originating in various foreign countries now requires reference to a large number of documents which differ from one another in some respects. Moreover, the present system of granting protection through numerous proclamations, co-existing with treaties with some of the same countries and other countries, is productive of many complexities and uncertainties. Thus, the eligibility of a foreign work for protection may require the determination, in various circumstances, of questions such as the following: What is the nationality of the author? Where is he domiciled? Where was the work first published? Is the country of origin (that of the author's nationality or of first publication) a member of the Universal Copyright Convention? Is the author's country a member of the Buenos Aires Convention? Has his country been proclaimed? Where was the work manufactured? What kind of notice is required? Does the author's country require registration, and if so, has such registration been made? What is the scope of the applicable proclamations (e.g., as to musical recording rights)? These questions are further complicated by the fact that a work may qualify for protection on several bases (a proclamation, the Universal Copyright Convention, the Buenos Aires Convention, a bilateral treaty) differing in their requirements, with consequent uncertainties. Further, the present system of proclamations is based on a finding, at the time a proclamation is issued, that the foreign country then provides "national" or "reciprocal" treatment for U.S. works. In the absence of a treaty or agreement for maintaining such treatment, there seems to be an implied need for the Government to review changes in the laws of the foreign countries to see that the treatment given U.S. works continues to provide an adequate basis for the proclamation. Some of the complications referred to above will no doubt remain as long as works of the member countries of the two Conventions are treated differently from works of non-member countries. But beyond that, the cumbersome system of according protection to non-member countries by issuing individual proclamations could be simplified, and the complexities flowing from the differentiation between proclaimed and non-proclaimed countries and between one proclaimed country and another, could largely be eliminated by the second alternative to which we now turn. 2. The granting of protection to all foreign works regardless of the author's nationality, and hence regardless of reciprocity, would appear to have several advantages: first, its simplicity and the elimination or minimizing of many of the complexities of the present system referred to above. Second, the principle of protection without regard to the author's nationality would be consistent with the concept of copyright as a species of property. Other forms of property are protected by our domestic laws without regard to the owner's nationality; and this is true of patents and other intangible rights. It is also true of an author's property rights in his unpublished works under the common law. The same principle might well be justified for an author's published works. Third, the protection of all foreign works would be generally beneficial to U.S. publishers, producers, and distributors. For example, if a foreign work is to be published or is to be made into a motion picture in the United States, it is important to the American publisher or producer that the work be under copyright so that he can acquire the exclusive right to publish it or to make a motion picture of it. Fourth, our adoption of the principle of protecting the works of all foreign authors might be of substantial psychological value abroad in demonstrating our respect for the cultural and intellectual creations of all nations and our desire to give all authors their due without national discrimination. This would probably contribute to our esteem, not only in those countries (mostly underdeveloped and nascent nations) to which we do not now extend copyright protection, but also among the intellectual circles in the advanced nations. In opposition to the extension of protection to all foreign works, it can be argued that the principle of reciprocity is just, and that the requirement of reciprocity is desirable to obtain protection for U.S. works abroad. It may be noted again in this connection that in three respects we already grant protection to works of authors who are nationals of countries that do not protect U.S. works, namely, their unpublished works, their works first published in a member country of the Universal Copyright Convention, and the published works of aliens domiciled in the U.S. or in a member country of the Buenos Aires Convention. Aside from that fact, the requirement of reciprocity may have been important during the past when the United States was seeking to secure protection for its works in other countries in exchange for its protection of their works. It may be less important now, when virtually all foreign countries in which U.S. works have a significant market (except the U.S.S.R.) protect U.S. works and we protect theirs. Moreover, as already indicated, it is beneficial to U.S. publishers, producers, and distributors to have foreign works protected here even though the country of origin does not protect the works of U.S. authors. As to securing protection of U.S. works in other countries if the U.S. protects all foreign works without requiring reciprocity, the experience of France may be enlightening. France has provided protection for the works of authors of all nations, and French works are now protected in a greater number of countries than are U.S. works, and probably in more countries than are the works of any other nation. 3. The third alternative represents an effort to achieve the simplicity and other advantages of the second alternative by providing basically for the protection of all foreign works, but with the authority reserved in the President to withhold or restrict protection by proclamation in regard to any particular country where reciprocity is deemed to be essential in the interest of the United States. Presumably the number of proclamations issued under this third alternative would be very few, instead of the many necessitated by the present system. Insofar as reciprocity is not deemed essentialwhich may be the case in regard to the many small, underdeveloped, or new countries where there is little use made of U.S. works and little use of their works in the U.S.-the advantages mentioned above in connection with the protection of all foreign works could be realized. At the same time, the authority reserved to the President to withhold or restrict protection in regard to any particular country would provide the means of imposing the requirement of reciprocity in any instance where it is deemed essential, as it might be, for example, under present conditions in relation to the U.S.S.R. It should be pointed out that under such a proclamation, protection for the works of nationals of any particular country would not be denied absolutely. For example, whatever the nationality of the author, his works would be entitled to protection if first published in a country party to the Universal Copyright Convention. C. RECAPITULATION OF BASIC ISSUES In a new U.S. copyright statute, which of the following alternative bases should be adopted for extending protection to the works of foreign authors? 1. Retain the present basis of protecting only those works of foreign authors that meet specified conditions. If so, should the qualifying conditions be (a) that the author is domiciled in the United States; (b) that the work is entitled to protection under a convention or treaty to which the United States is a party; (c) that the President finds and proclaims (1) that the country of which the author is a national protects works of United States 62629-61 citizens, or (2) that the country in which the work is first published protects works first published in the United States: (d) that the work is first published in the United States? 2. Extend protection to the works of all authors regardless of their nationality. 3. Extend protection to the works of all authors regardless of their nationality, except as the President by proclamation may withhold or restrict protection as to the works of nationals of any particular country. |