aries of the foreign countries that are parties to the Convention are eligible for protection in the United States. The Convention (Art. 3) provides in substance that the works of an author of any one adhering country are to be protected in the other adhering countries if the formal requirements for protection in the country of origin have been fulfilled, and if there appears a statement in the work "indicating the reservation of the property right." It might be argued that works to which the Buenos Aires Convention applies are entitled to protection in the United States even though such works (1) bear a "reservation of property right" which is different from the U.S. copyright notice, (2) did not comply with the U.S. manufacturing requirement, or (3) have not been deposited and registered in the U.S. Copyright Office. 22 However, the statute makes no special provisions for works covered by the Buenos Aires Convention; and in the absence of judicial interpretation the validity of the foregoing argument remains uncertain.

The protection to be given to foreign works is clearly national treatment under the Mexico City Convention (Art. 5) and less clearly so under the Buenos Aires Convention (Art. 3). At least in one respect our courts have accorded less than full national treatment: the musical recording rights provided for in section 1(e) of our statute were denied to aliens claiming protection under the Buenos Aires Convention in the absence of a Presidential proclamation of such rights for their country.23

(4) Overlaps

A given alien's work may appear to qualify for protection under more than one theory. For example, he may be a national of a country which is proclaimed and is also a party to the Buenos Aires and/or the Universal Copyright Convention.

Since the requirements and conditions of U.S. protection differ under these various bases, such overlaps give rise to uncertainty and confusion. The following questions are mentioned by way of examples:

Is the work of a national of a foreign country which is proclaimed and is also a party to the Universal Convention exempt from the manufacturing clause if the work bears a notice which meets the prescription of the U.S. statute but not that of Article III of the Universal Convention?

Is the work of a national of a foreign country which is proclaimed and is also a party to the Buenos Aires Convention exempt from the manufacturing clause?

Is the work of a national of a foreign country which is a party to both the Buenos Aires and the Universal Conventions, and bearing no notice other than the words "Derechos Reservados," eligible for protection in the United States?

Much uncertainty regarding these and other similar questions exists under our present law.

Pos

Some countries are parties to both the Buenos Aires and the Universal Copyright Conventions. sible conflicts between the two are intended to be resolved by Article XVIII of the latter Convention. However, the problems arising in connection with the notice requirement are not expressly solved, and text writers have differed on the interpretation of Article XVIII. Cf. Arpad Bogsch, The Universal Copyright Convention (1958) p. 156; Plinio Bolla, A propros de l'article XIX de la Convention Universelle sur le Droit d'Auteur, in 8 UNESCO Copyright Bulletin 84 (1955); McConnell, The Effect of the Universal Copyright Convention on Other International Conventions and Arrangements, in ASCAP COPYRIGHT LAW SYMPOSIUM No. 9 (1958) 32, 63.

23 Portuondo v. Columbia Phonograph, 81 F. Supp. 355 (D.C.S.D.N.Y., 1937).

Chapter III

REFORM EFFORTS SINCE 1909

The half century since 1909 has been rich in legislative efforts to modify the status of foreign works. Some of the efforts succeeded, others did not. Among the former, the gradual liberalization of the manufacturing clause 24 and the changes made to conform our statute to the Universal Copyright Convention 25 have been the most important.

Most of the unsuccessful bills proposed a general revision of the copyright law, and were largely shaped by the desire of their proponents to enable the United States to join the Berne Union. The most significant of these bills of general revision were the Dallinger (1924), Perkins (1925), Vestal (1926, 1930), Sirovich (1932, 1936), Duffy (1935), Daly (1936), and Thomas (1940) bills.26 In order to make our law conform to the Berne Convention, these bills either eliminated altogether the requirement of certain formalities for copyright protection, or exempted Berne Union works therefrom, including requirements as to notice, deposit, registration, and the manufacturing clause. In view of U.S. adherence to the Universal Copyright Convention in 1954, the movement for adherence to the Berne Union has diminished if not virtually ceased, and it seems superfluous to go into details of the various earlier bills regarding formalities. But mention should be made of the provisions in those bills, corresponding with section 9 of the present statute, regarding the bases for extending protection to foreign works.

In general, these bills extended protection to works of aliens domiciled in the U.S., of citizens of Berne Union countries (if the U.S. adhered thereto), and of citizens of other countries proclaimed by the President. With respect to countries not members of the Berne Union, most of these bills departed in some particulars from the 1909 Act as to the bases for Presidential proclamations.

As pointed out above, under the 1909 Act proclamations may be issued in respect to countries which are parties to an "open convention," even though the United States is not a party to, and its citizens do not receive protection under, such convention. This basis for proclamations was omitted from a number of the bills, for example, the Vestal (1926, 1930), Sirovich (1936), and Thomas (1940) bills, cited above.

It has also been mentioned that under the 1909 Act proclamations may be issued in respect to countries which grant either "national treatment" or "reciprocal treatment" to our citizens. According to that Act, a proclamation may be based on a finding that either form of treatment is granted to works of U.S. citizens by a treaty or agreement with the foreign country, or on a mere finding that such treatment is accorded by the law of the foreign country. This latter possibility was eliminated in some of the bills, for example the Perkins (1925) and Vestal (1926, 1930) bills, cited above.

24 See note 6, supra.

25 Act of Aug. 31, 1954, ch. 1161, 61 Stat. 655.

24 Dallinger: H.R. 8177, 68th Cong., 1st Sess. (1924), and H.R. 9137, 68th Cong., 1st Sess. (1924); Perkins: H.R. 11258, 68th Cong., 2d Sess. (1925); Vestal: H.R. 10434, 69th Cong., 1st Sess. (1926), and H.R. 12549, 71st Cong., 2d Sess. (1930); Sirovich: H.R. 10976, 72d Cong., 1st Sess. (1932), and H.R. 11420, 74th Cong., 2d Sess. (1936); Duffy: 8. 2465, 74th Cong., 1st Sess. (1935), and S. 3047, 74th Cong., 1st Sess. (1935); Daly: H.R. 10632, 74th Cong., 2d Sess. (1936); Thomas: S. 3043, 76th Cong., 3d Sess. (1940).

In the Thomas bill (1940) "reciprocal treatment" was dropped as a basis for a proclamation; the bases were to be "national treatment" or-and this was a new idea-treatment equivalent to that given us by other countries under a treaty.27

The Sirovich bill (1932) omitted "national treatment" as a basis for proclamations; the basis was to be treatment substantially equal to that given by the United States to its own citizens.28

This

So much as to the conditions for issuing proclamations. As to the contents of the proclamations, the situation under the 1909 Act is that the extension of musical recording rights to foreign musical compositions must be proclaimed explicitly and specially. special_requirement was maintained in some bills (e.g., Dallinger, 1924; Perkins, 1925; Vestal, 1930), but was eliminated in others (e.g., Vestal, 1926; Thomas, 1940).

Under the present Act, and under most of these bills, Presidential proclamations would operate to extend the full protection afforded by the U.S. law to works of the citizens of the foreign country (national treatment), with the possible exception of musical recording rights. Some of the bills, however, provided that the duration of copyright in the U.S. should not extend beyond the time when the foreign work has fallen into the public domain in the country of origin (Dallinger, 1924; Perkins, 1925; Vestal, 1926, 1930). The Sirovich bill (1936) contained a novel provision: whenever the President found that a foreign country placed restrictions on the importation, distribution, or use of U.S. works, he was to impose similar restrictions on works of that country.29 The Thomas bill (1940) contained a somewhat similar provision to the effect that if a foreign country restricted the rights it accorded to U.S. works, the President could proclaim similar restriction on the rights accorded to works of that country.30

Chapter IV

THE LAWS OF FOREIGN COUNTRIES

Many foreign countries protect the works of an alien if the alien resides in their territory or first publishes his work in their territory. This is, of course, not essentially protection of foreign works, as the circumstances just mentioned are thought to give the works a domestic character.

Leaving these circumstances aside, most foreign countries having copyright laws grant protection to an alien only if their nationals receive some kind of protection in the alien's country. But there are a few countries-notably France and Portugal-which have traditionally granted protection to the works of all aliens irrespective of any quid pro quo.

31

The legislation devices in foreign countries implementing the principle of quid pro quo are of infinite variety. The statutes of Germany, the Soviet Union, and the United Kingdom will be mentioned as typical examples.

27 S. 3043, 76th Cong., 3d Sess., § 7.

H.R. 12425, 72d Cong., 1st Sess., § 5(d).

29 H. R. 11420, 74th Cong.. 2d Sess. § 7(f).

30 S. 3043, 76th Cong., 3d Sess., § 7.

31 France: see Law No. 57-296 of March 11, 1957, Art. 70, "Journal Official" of March 14, 1957, page 2723; Portugal: Decree-Law No. 13725 of May 27, 1927, Árt. 136, "Diario do Governo" of June 3, 1927.

In Germany,32 there are no statutory provisions for the protection of works of aliens, but they are protected by virtue of international treaties. Germany is a member of the Berne Union and a party to the Universal Copyright Convention, and has made several bilateral treaties dealing exclusively or partly with copyright; and as international treaties take precedence over statutes, Germany protects the works of nationals of some sixty countries (including the United States) as well as the works of any alien if first published in a country party to the Berne or Universal Conventions.

In the Soviet Union, the statute provides that "copyright in a work published abroad or located abroad as a manuscript *** shall be recognized only if the U.S.S.R. has a special agreement to this effect with the country concerned." 33 So far as is known, the Soviet Union has not concluded any such agreements.

In the United Kingdom, protection is available for works of aliens. if Her Majesty, by Order in Council, designates the foreign country of the author, or of the first publication, as one to which the British Copyright Act extends. Orders in Council may be issued in respect to a co-party with the United Kingdom in a copyright convention, or in respect to any other country whose laws give "adequate protection" to British authors. Orders may contain restrictions on the scope or extent of the protection for a particular country "if it appears to Her Majesty that the laws of a country fail to give adequate protection to British works," and "in making [such a restrictive] Order *** Her Majesty shall have regard to the nature and extent of the lack of protection for British works.'

34

Chapter V

QUESTIONS TO BE CONSIDERED IN A REVISION OF THE LAW

A. ALTERNATIVE BASES FOR PROTECTION OF FOREIGN WORKS

In revising our copyright law, what basis should be adopted for protecting works of foreign origin? Three alternatives will be presented:

(1) Retain the present system (with possible changes in detail). (2) Provide protection to all foreign works without regard to their national origin.

(3) Provide protection to all foreign works except as the President may otherwise proclaim.

1. Under the present system, works of alien authors are protected only if one of the following conditions is met: that the author is domiciled in the United States, or that the work is entitled to protection under a convention or treaty to which the United States adheres, or that the country of which the author is a national has been proclaimed by the President. If this basic system is retained, consideration might be given to changing or clarifying the present law in some of its particulars.

(a) As pointed out above, the present staute (§ 9(a)) is not clear as to whether an unpublished work of an alien domiciled in the United

2 German Law of June 19, 1901, as amended by the Laws of May 22, 1910, and December 13, 1934. 33 Joint Resolution of the U.S.S.R. Central Executive Committee and the Council of People's Commissars of May 16, 1928, Principle No. 1.

U.K. Copyright Act, 1956, 4 & 5 Eliz. 2, Ch. 74, § 32.

35 Id. § 35.

States is eligible for registration under section 12. This should be clarified. No reason is seen to exclude such works from the privilege of registration.

(b) Consideration might be given to treating works first published in the United States as domestic works irrespective of the author's nationality. This would amount to a general application of the principle we have already adopted in section 9(c) of the present law regarding the protection of works under the Universal Copyright Convention.

(c) The present statute ($9(c)) provides expressly that works protected under the Universal Copyright Convention are exempted from certain general requirements (see p. 5 supra). There is no reference in the present statute to the Buenos Aires Convention; and as pointed out above, there is some uncertainty as to the application of some provisions of the present statute to works coming under that Convention. The new statute should make such exceptions from its general rules as are necessary to conform with our obligations under the Universal and Buenos Aires Conventions.

(d) As to the conditions for Presidential proclamations for foreign countries with which no treaty relations exist, the present conditions that the foreign country grant either national treatment or substantially reciprocal treatment to U.S. works might be retained. But there would seem to be no reason to retain the "open convention" basis for proclamations.

(e) Protection by proclamation might be authorized not only for works of nationals of the designated country, but also for works first published in that country.

(f) The President might be authorized to impose limitations or conditions on the protection accorded to any country which imposes. similar limitations or conditions on the protection of U.S. works.

2. The second alternative-protection for all works without regard to their national origin-would be a marked departure from the present system. Under this alternative, all foreign works would be accorded the same protection as domestic works without discrimination. This would extend to statutory copyright, the principle now followed in our common law regarding unpublished works.

If the new law purports to treat domestic and foreign works alike, but contains any requirements (e.g., as to deposit, registration, or manufacture in the U.S.) which conflict with our obligations under the Universal or Buenos Aires Copyright Conventions, it would be necessary to provide appropriate exemptions for foreign works entitled to protection under those Conventions.

3. The third alternative-protection for all foreign works except as the President may otherwise proclaim-would depart from the present system in regard to procedure, but could achieve the same result of reciprocity as far as that may be deemed desirable.

The President would be empowered to withhold or withdraw protection from the works originating in any particular country, or to impose conditions or restrictions on their protection, whenever he found it to be in the interest of the United States to do so. If there are countries in respect to which protection is deemed undesirable ab initio, the President could issue the appropriate proclamation with the same effective date as that of the new statute. If a foreign country imposed burdensome conditions or restrictions on U.S.