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International Copyright Act of 1886 (Imp.) is in force in Canada,58 and brings into operation there the original Berne Convention,59 as modified by the Additional Act of Paris.60 Accordingly compliance with the conditions and formalities of the country where a literary work is first produced, if it is a country belonging to the copyright union, confers copyright in Canada without compliance with the Canadian statute.61

Foreign reprints. Canada at one time took advantage of the Foreign Reprints Act,62 and during that period importation into Canada of unauthorized foreign reprints of works protected by English copyright was not illegal.63 The full effect of the Foreign Reprints Act was to permit importation; it did not permit reprinting within the dominion.64 The collection of duty on imported reprints for the benefit of the copyright proprietor was discontinued by the Canadian Tariff Customs Act of 1894,65 and since that time the prohibition against importation has been operative.66 The Imperial Customs Act of 1876 requiring notice to the customs officials when it is desired to prevent importation of reprints does not apply to Canada.67

[79] (2) South African Union. The act of 1911 has not as yet been made operative in the South African Union, and consequently the repealed imperial statutes are in force and govern imperial copyright." The same considerations are applicable here as in the case of Canada.69 copyright in Cape Colony, Natal, and the Transvaal

68

58. Hubert v. Mary, 15 Que. K. B. 381. International copyright see infra § 453 et seq. International copyright relations of United States see infra § 454.

59. See infra § 455.

"Upon the formation of the International Copyright Union under the Berne Convention of 1887, Great Britain sought and obtained the consent of all her self-governing possessions to accept the Convention on their behalf. Canada's consent was given on the express condition that she should be free to withdraw from the Union at any time, and she has since repeatedly urged the Imperial authorities to give the required notice of her denunciation, but this they have refused to do. Canada therefore remains an unwilling member of the Union and bound by the provisions of the International Copyright Act passed in order give effect to the Convention throughout the Empire." Copyright in Canada, 49 AmLRev 675, 678.

to

"The Dominion of Canada and the Union of South Africa continue subject to the Berne Convention, 1886, and the Additional Act of Paris, 1896, until Great Britain has acceded on their behalf to the Berlin Convention, 1908." Robertson Copyright (Suppl. 1915) p 17. To same effect Copinger Copyright (5th ed) p 338.

60.

B. 381.

Mary v. Hubert, 15 Que. K.

[a] The Berlin Convention which revised the Convention of Berne is not in force in Canada, because the imperial act of 1911, and the orders in council issued thereunder, which put the convention in force, do not extend to self-governing dominions. See supra § 77. See also orders in of council of June 24, 1912, and Febr. 3, 1915 (relating to United States).

Local

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[§ 81] (4) Australia. Australia has declared the British act of 1911 to be in force as from July 1, 1912, with modifications applicable to Australian authors and works." By order in council Australia has adhered to the Berlin Convention, and is a member of the International Copyright Union.76

77

[82] (5) New Zealand. New Zealand has passed a copyright act," and while it does not accept the British act of 1911, it does grant "adequate protection" to British subjects, and therefore it comes under the provisions of that act as to reciprocal protection between the self-governing dominions inter sese and with the mother country subject to the issuance of the necessary orders in council.T New Zealand has also adhered to the Berlin Convention, and is a party to the International Copyright Union as from April 1, 1914.79 Formerly New Zealand had local copyright acts,80 and the British imperial acts81 also extended to New Zealand.82

[§ 83] (6) India. The Copyright Act of 1842 formerly extended to India,83 but as India is not one of the self-governing dominions, the

out the formality of any registration. It cannot be seriously pretended for a moment that once foreign authors are exempt from the formalities required for British authors in Great Britain, those authors should be obliged to fulfill in the colonies of Great Britain the formalities provided in the laws of each of those colonies. Any such pretension is against the spirit and letter of the Convention of Berne. Any such pretension would place the colonies of Great Britain in a more favorable position than Great Britain herself; in itself an absurd conclusion. Finally, any such pretension is destroyed by the formal texts of the English statutes." Hubert v. Mary, supra.

62. See supra § 77 text and notes

21-23.

63. Morang V. Publishers' Syndicate, 32 Ont. 393, 21 CanLTŌce Notes 77 (giving the history of legislation on this subject); Smiles v. Belford, 23 Grant Ch. (U. C.) 590 [app dism 1 Ont. A. 436].

64. Smiles v. Belford, 23 Grant Ch. (U. C.) 590 [app dism 1 Ont. A. 436]; Morang v. Publishers' Syndicate, 32 Ont. 393, 21 CanLTOcc Notes 77.

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[a] "The effect of the repeal, at the revision of 1886, of the Act of 1850, and the abandonment in 1895 of the collection of the twelve and a half per cent. ad valorem duty upon foreign reprints for the benefit of the owner of British copyright, revived the provisions of the Imperial Act of 1847, prohibiting the importation of 61. Hubert v. Mary, 15 Que. K. foreign reprints of British copyB. 381, 383 [aff 29 Que. Super. 334]. rights, for the Imperial Act of 1847 "It is clear to this Court that and the order of the Queen in councopyright obtained by a foreigner in cil under which the prohibitions conhis own country, if it is a party to tained in the Act of 1842 against the the Convention of Berne, protects importation of foreign reprints were him through the British Empire with- I suspended only provided for such

84

suspension so long as the provisions of the Canadian Act of 1850, under which the twelve and a half per cent. was collected, continued in force within Canada. I am, therefore, of opinion that the objection taken by the defendants is not sustainable, and that, on that ground, the plaintiffs' copyright is in force in Canada, and they are entitled to prohibit the importation of foreign reprints into Canada." Morang V. Publishers' Syndicate, 32 Ont. 393, 403, 21 Can LTOceNotes 77.

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Copinger Copyright (5th ed) pp 338, 349. (New

77. Copyright Act, 1913 Zealand St. [1913] No. 4). 78.

36.

See supra § 77 text and note
Copinger Copyright (5th ed)

79. p 350. 80. "The Fine Arts Copyright Act 1877, Amendment Act 1879." See also Ex p. Dobson, 12 New Zeal. L. 171 (construing above act).

81.

82.

171.

See supra § 77.

Ex p. Dobson, 12 New Zeal. L. 83. MacMillan v. Khán Bahadur Shamsul Ulama M. Zaka, [1895] 19 Indian L. R. 567. (Bombay) 557, See also supra § 77 text and note 7. "The statute at present in force [i. e. in 1895] is 5 and 6 Vict.. cap. 45, of which the Indian Act XX of 1847 is a reproduction with certain necessary alterations." MacMillan v. Khán Bahadur Shamsul Ulama M. Zaka, supra.

84.

See supra § 77 text and note 3.

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[§ 84] (7) Cyprus. The act of 1911 has been extended to the island of Cyprus by Order in Council,88 and by like order the Berlin Convention has also been put in force in Cyprus.89

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[85] B. Constitutionality of Statutes-1. Federal Statutes. Under the constitution, congress is authorized to enact copyright legislation "to promote the Progress of Science and Useful Arts,' and this is to be done by securing to "Authors," for "limited Times," the exclusive right to their respective Writings."90 All valid copyright legislation must conform to the limitations of this grant. Thus the "exclusive right" can be conferred only for a "limited" period of time,92 although the length of that period is within the dis

91

85. See supra § 77.

86. See 1 & 2 Geo. V c 46 § 37 (2) (d).

87. Indian Copyright Act, 1914 (No. 3 of 1914).

88. Order in Council, June 24, 1912; Statutory Rules and Orders, 1912, No. 912. See 1 & 2 Geo. V c 46 § 28.

89. Order in Council, June 24, 1912: Statutory Rules and Orders, 1912, No. 913.

90. Const. art 1 § 8. 91. Pennock v. Dialogue, 2 Pet. (U. S.) 1, 7 L. ed. 327; Barnes v. Miner, 122 Fed. 480. And see cases passim this section.

92. Pennock v. Dialogue, 2 Pet. (U. S.) 1, 7 L. ed. 327.

93. Pennock v. Dialogue, (U. S.) 1, 7 L. ed. 327.

2 Pet.

"The constitution of the United States has declared, that 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.' It contemplates, therefore, that this exclusive right shall exist but for a limited period, and that the period shall be subject to the discretion of congress." Pennock v. Dialogue, 2 Pet. (U. S.) 1, 16, 7 L. ed. 327.

94. Bleistein v. Donaldson Lith. Co., 188 U. S. 239. 242, 23 SCt 298, 47 L. ed. 460; Barnes v. Miner, 122 Fed. 480.

95. Bleistein V. Donaldson Lith. Co., 188 U. S. 239, 249, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296].

CCA 250.

94

95

cretion of congress.93 So the copyright granted must have some relation to the "useful arts" to promote which it is granted, but the "useful," in this connection, is not limited to that which satisfies immediate bodily needs." Printing and engraving, although not for a mechanical end, are not excluded from the useful arts which congress is empowered to promote by copyright legislation.96 Only what may be denominated the "writings" of an "author" may be granted copyright protection.97 This involves a requirement that the matter protected shall be original 98 and the product of the creative powers of the mind.99 But the term "writings" has been given a very broad and comprehensive meaning as applied to permissible subjects of copyright.' It includes not only ordinary literary works which may be reproduced in letter press and the words of which may be read,2 but the term also included photographs, photographic nega

"The clause of the Constitution under which Congress is authorized to legislate for the protection of authors and inventors is contained in the eighth section of article one, which declares that 'the 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.' This provision evidently has reference only to such writings and discoveries as are the result of intellectual labor. It was so held in U. S. v. Steffens, 100 U. S. 82, 25 L. ed. 550, where the court said that 'while the word writings may be liberally construed, as it has been, to include original designs for engravings, prints, etc., it is only such as are original, and are founded in the creative powers of the mind.' It does not have any reference to labels which simply designate or describe the articles to which they are attached, and which have no value separated from the articles; and no possible influence upon science or the useful arts." Higgins v. Keuffel,

supra.

1. Courier Lith. Co. v. Donaldson Lith. Co., 104 Fed. 993, 44 CCA 296 [rev on other grounds 188 U. S. 239, 23 SCt 298, 47 L. ed. 460]; U. S. v. Steffens, 100 U. S. 82, 25 L. ed. 550; Meccano v. Wagner, 234 Fed. 912; J. L. Mott Iron Works v. Clow, 82 Fed. 316, 27 CCA 250.

[a] The word "writings" (1) with reference to protection by copyright is not limited to the actual script of the author, but includes his printed books and all forms of writing, print

"The Constitution does not limit the useful to that which satisfies immediate bodily needs." Bleisteining, v. Donaldson Lith. Co., supra.

96. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296] (holding copyright on circus posters valid).

engraving. etching, etc., by which the ideas in his mind are given visible expression. A photograph which is not only a lightwritten picture of some object, but also an expression of an idea, or thought, or conception of the one who takes it, is a "writing" within the constitutional sense, and a proper subject of copyright. American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262, 265. (2) The word "writings" includes maps, charts, engravings, etchings, prints, paintings, drawings, chromos, statues, models, designs, photographs, and the negatives thereof, dramatizations of copyrighted works, and may also

97. Higgins v. Keuffel, 140 U. S. 428, 11 SCt 731, 35 L. ed. 470 [aff 30 Fed. 627]; Burrow-Giles Lith. Co. v. Sarony, 111 U. S. 53, 4 SCt 279, 28 L. ed. 349 [aff 17 Fed. 591]; U. S. v. Steffens, 100 U. S. 82, 25 L. ed. 550; White-Smith Music Pub. Co. v. Apollo Co.. 139 Fed. 427 [aff 147 Fed. 226, 77 CCA 368 (aff 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628)]; Courier Lith. Co. v. Donaldson Lith. Co., 104 Fed. 993, 44 CCA 296 [rev on be extended to moving pictures tendother grounds 188 U. S. 239, 23 SCting to reproduce an artist's concep298, 47 L. ed. 460]; J. L. Mott Iron Works v. Clow, 82 Fed. 316, 27 CCA 250.

98. Originality and authorship see infra 88 91-97.

99. Higgins v. Keuffel, 140 U. S. 428. 430, 11 SCt 731, 35 L. ed. 470 [aff 30 Fed. 627]; J. L. Mott Iron Works Co. v. Clow, 82 Fed. 316, 27

tion of an author's situation as de-
scribed in words. Harper v. Kalem
Co., 169 Fed. 61, 64, 94 CCA 429 [aff
222 U. S. 55, 32 SCt 20, 56 L. ed. 92,
AnnCas1913A 1285].

[b] Constitutional growth.-"But
when the federal constitution was
adopted, the application of this right
to productions other than those

strictly literary had not yet been mooted. The great case of Donaldson v. Beckett, 2 Brown, Parl. Cas. 129, had been decided only thirteen years previously. The business world, that in this day permits nothing to escape as a means for its exploitation had not yet pressed into her service art and books. Business catalogues, circulars containing market quotations, sheets, such as Dun's and Bradstreets' directoriesthe whole staff of aides-de-camp to commerce, now familiar to all-were then practically unknown. In the public mind, the publication of a book meant that literature, as literature, had received an accession. Unquestionably, the framers of the constitution, in vesting Congress with 'power to promote the progress of science and the useful aris, by securing for limited times to authors and inventors exclusive right to their respective writings and discoveries,' had this kind of authorship in mind; and were the intention of the framers of the constitution to give boundary to the constitutional grant, many writings, to which copyright has since been extended, would have been excluded. But, here as elsewhere, the constitution, under judicial construction, has expanded to new conditions as they arose. Little by little copyright has been extended to the literature of commerce, SO that it now includes books that the old guild of authors would have disdained; catalogues, mathematical tables, statistics, designs, guide-books, directories, and other works of similar character. Nothing, it would seem, evincing, in its makeup, that there has been underneath it, in some substantial way, the mind of a creator or originator, is now excluded. belief that in no other way can the labor of the brain, in these useful departments of life, be adequately protected, is doubtless responsible for this wide departure from what was unquestionably the original purpose of the constitution. But, obviously, there is a point at which this process of expansion must cease." National Tel. News Co. v. Western Union Tel Co., 119 Fed. 294, 297, 56 CCA 198, 60 LRA 805.

A

2. American Mutoscope, etc., Co. V. Edison Mfg. Co., 137 Fed. 262. And cases infra this section passim. 3. Thornton v. Schreiber, 124 U. S. 612, 8 SCt 618, 31 L. ed. 577; BurrowGiles Lith. Co. v. Sarony, 111 U. S. 53, 4 SCt 279. 28 L. ed. 349 [aff 17 Fed. 591]; Harper v. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913A 1285]; American Mutoscope, etc., Co. v. Edison Mfg. Co., 137 Fed. 262.

[a] Construction of statute to include photographs.-"The construction placed upon the Constitution by

9

tives, motion picture films, pictures, sculptures or other works of art, musical compositions, maps and charts, drawings,10 and the like." The limitation of power to the protection of writings only excludes the power to grant protection to, or a monopoly in, mere ideas or intellectual concepts apart from the concrete embodiment of them in a particular "writing. But notwithstanding this rule, congress has power to extend copyright protection to dramatizations of copyright works,13 including public representation by moving pictures.14

19 12

the

Ex

clusive performing rights in dramatic or musical compositions may be, and have been, granted,15 and protection has been extended to the mechanical means of reproduction, such as perforated musie rolls and disc records.16

4. Harper v. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913A 1285].

5. Harper v. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913A 1285]. See also infra note 14.

Motion pictures 2.8 subjects of copyright see infra §§ 120-122.

6. Bleistein v. Donaldson Lith. Co., 188 U. S. 239, 23 SCt 298, 47 L. ed. 460 [rev 104 Fed. 993, 44 CCA 296]; National Cloak, etc., Co. v. Kaufman, 189 Fed. 215, 217; Harper v. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, Ann Cas1913A 1285]. See also infra §§ 114-116, 117, 119.

"The act (section 5 [k]) expressly mentions 'pictorial illustrations' as the proper subject of copyright, and they are now considered the 'writing of an author' as contemplated by section 8, art. 1, of the constitution." National Cloak, etc., Co. v. Kaufman, supra.

8.

7. See infra §§ 114-116.
See infra §§ 110, 111.
9. Burrow-Giles Lith. Co.
Sarony, 111 U. S. 53, 4 SCt 279, 28 L.
ed. 349 [aff 17 Fed. 591]; Harper v.
Kalem Co., 169 Fed. 61, 94 CCA 429
[aff 222 U. S. 55, 32 SCt 20, 56 L. ed.
92. AnnCas1913A 1285]. See also
infra §§ 112, 113.

107-109.

14. Kalem Co. v. Harper, 222 U. S. 55, 63, 32 SCt 20, 56 L. ed. 92. Ann Cas1913A 1285 [aff 169 Fed. 61, 94 CCA 429]; Atlas Mfg. Co. v. Street, 204 Fed. 398, 122 CCA 568, 47 LRANS 1002.

"It is argued that the law construed as we have construed it goes beyond the power conferred upon Congress by the Constitution, to secure to authors for a limited time the exclusive right to their writings. Art. I, § 8, cl. 8. It is suggested that to extend the copyright to a case like this is to extend it to the ideas as distinguished from the words in which those ideas are clothed. But there is no attempt to make a monopoly of the ideas expressed. The law confines itself to a particular, cognate and well known form of reproduction. If to that extent a grant of monopoly is thought a proper way to secure the right to the writings this court cannot say that Congress was wrong." Kalem Co. v. Harper, supra.

Unreasonable searches and seizures. The constitutional provisions against unreasonable searches and seizures" are not violated by the admission in cvidence of the replevin proceedings under which infringing copies were seized,18 nor by compelling production of the books and papers of a corporate the first act of 1790, and the act of | U. S. 53, 57, 4 SCt 279, 28 L. ed. 349 1802, by the men who were contempo- [aff 17 Fed. 591]. rary with its formation, many of Photographs as subjects of copywhom were members of the conven- right see infra § 118. tion 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. Unless, therefore, photographs can be distinguished in the classification on this point from the maps, charts, designs, engravings, etchings, cuts, and other prints, it is difficult to see why Congress cannot make them the subject of copyright as well as others. 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, &c., 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. Nor is it to be supposed that the framers of the Constitution did not understand the nature of copyright and the objects to which it was commonly applied, for copyright, as the exclusive right of a man to the production of his own genius or intellect, existed in England at that time, and the contest in the English courts, finally decided by a very close vote in the House of Lords, whether the statute of 8 Anne, chap. 19, which authorized copyright for a limited time, was a restraint to that extent on the common law or not, was then recent. It had attracted much attention, as the judgment of the King's Bench, delivered by Lord Mansfield, holding it was not such a restraint, in Miller v. Taylor, 4 Burr. 2303, 98 Reprint 201, decided in 1769, was overruled on appeal in the House of Lords in 1774. Ibid. 2408. In this and other cases the whole question of the exclusive right to literary and intellectual productions had been freely discussed. 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." Burrow-Giles Lith. Co. v. Sarony, 111

10. Harper v. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 29, AnnCas1913A 1285]. See also infra § 117.

11. What may be copyrighted see infra §§ 90-143.

12. Kalem v. Harper, 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913A 1285; White-Smith Music Pub. Co. v. Apollo Co., 139 Fed. 427, 430 [aff 147 Fed. 226, 77 CCA 368 (aff 209 U. S. 1, 28 SCt 319, 52 L. ed. 655. 14 AnnCas 628)]. See also infra § 267.

"The meaning of the word 'writings,' as employed in the Constitution, has been expressly defined in Burrow-Giles Lith. Co. V. Sarony,

[a] Reason for rule.-"It is argued from this that, as these moving pictures only express the artist's conception of the author's ideas as expressed in the words of the copyv.righted book or dramatic composition, they cannot be said to infringe the author's rights. But the history of the copyright law does not justify so narrow a construction of the word writings.' The first copyright law of 1790 (Act May 31, 1790, c. 15, 1 Stat. 124), included maps and charts as well as books. In 1802 (Act April 29, 1802, c. 36, 2 Stat. 171) copyright was extended to engravings, etchings, and prints. In 1856 (Act Aug. 18, 1856, c. 169, 11 Stat. 138) it was extended in the case of copyrighted dramatic compositions to the right of publicly performing the same. In 1870 (Act July 8, 1870, c. 230, 16 Stat. 212) it was extended to paintings, drawings, chromos, statues, models, designs, photographs, and the negatives thereof, and the authors were so allowed to reserve the right to dramatize their works. In 1891 (section 4952, Rev. St. U. S.) authors and their assigns were given the exclusive right to dramatize their copyrighted works. The construction of the word 'writings' to cover these various forms of expression, and also to cover the right of giving public performances, has been acquiesced in for over 50 years. In view of this fact, we have no difficulty in concluding that moving pictures would be a form of expression infringing not the copyrighted book or drama, but infringing the author's exclusive right to dramatize his writings and publicly to perform such dramatization." Harper v. Kalem Co., 169 Fed. 61, 64, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913A 1285]. Motion pictures as subjects of copyright see infra §§ 120-122. 15. Harper v. Kalem Co., 169 Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas1913A 1285]. See also infra §§ 107-111. 16. See also infra § 123. 17. U. S. Const. Amendms. IV, V. 18. American Tobacco Co. V. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [aff 146 Fed. 375, 76 CCA 647].

111 U. S. 53, 4 SCt 279, 28 L. ed.
349, to include all forms of writ-
ing, printing, engraving, etching,
etc., by which the ideas in the
mind of the author are given
visible expression.' The restricted
definition of the word 'writings'
does not, it is thought, permit
the inclusion in section 4952 of the
Revised Statutes [U. S. Comp. St.
1901 p 3406] of a musical concep-
tion, or the inclusion of collated
musical sounds or expressions of a
musical composition. The words of
the

statute have reference to the
tangible object that appeals to the
sense of sight, and that which is
susceptible of being reproduced by
printing, copying, publishing, etc."
White-Smith Music Pub. Co. V.
Apollo Co., supra.

Right conferred by copyright see infra §§ 264-271.

Infringement see infra § 263 et

seq.

13. Kalem Co. v. Harper, 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, AnnCas 1913A 1285 [aff 169 Fed. 61, 94 CCA 429].

Dramatic copyright see infra §§

defendant on a subpoena duces tecum.19

[86] 2. State Statutes. At least to the extent that congress has exercised its power to legislate on the subject of copyright, its regulations are paramount and exclusive, and any state legislation on the same subject is unconstitutional and void.20 Whether or not there is any portion of the general field not covered by the congressional legislation, and to which state legislation might constitutionally extend, seems not to have become the subject of judicial decision, and admits of substantial doubt.21 Such power has been assumed and exercised, however, in a number of states, by statutes against the unauthorized performance or publication of dramatic, musical, or operatic works, to which reference has been made.22

Taxation. A statute assuming to tax a copyright secured under the laws of the United States is void. 23

[87] C. Construction and Operation-1. In General. In construing the copyright laws to

19. American Lith. Co. v. Werckmeister, 221 U. S. 603, 31 SCt 676, 55 L. ed. 873.

[a] The protection against unreasonable searches and seizures afforded by Const. Amendm. IV cannot ordinarily be invoked to justify the refusal of an officer of a corporation to produce its books and papers in obedience to a subpoena duces tecum issued in an action against the corporation to recover a statutory penalty. American Lith. Co. v. Werckmeister, 221 U. S. 603, 31 SCt 676, 55 L. ed. 873.

20. Woollen v. Banker, 30 F. Cas. No. 18.030, 2 Flipp. 33, 35 (patent case); Peo. v. Roberts, 159 N. Y. 70, 53 NE 685, 45 LRA 126 [rev 35 App. Div. 624, 54 NYS 1112].

"That the Constitution of the United States has conferred upon the Congress the power "To promote the progress of science and the useful arts, by securing for limited time, to authors and inventors the exclusive right to their respective writings and discoveries,' by Sec. 8, Art. I., is no more certain than that such power has been exercised by the enactment of patent laws, and that no State can limit, control, or even exercise the power. Congress has not only regulated the manner in which a patent may be obtained, but it has prescribed the manner in which such right may be sold and conveyed, and has imposed the penalties for the infringement thereof. The national government has, therefore, made a patent right, property. The patentee has paid the Government for the monopoly, and it is bound to protect him and his assignee in the use and enjoyment of it. Any interference whatever by any State, that will impair the right to make, use, or vend any patented article, or the right to assign the patent or any part of it, is forbidden by the highest organic law. The statute in question is such an interference, and is unconstitutional." Woollen v. Banker, supra.

on

ascertain the legislative intent, regard must be had
to the objects and purposes sought to be attained.24
The main purpose of the copyright statutes has been
to secure to the author the exclusive right to
multiply copies of his work,2 25 and to increase the
stock of literature of the country.26 The failure of
congress specifically to legislate concerning mat-
ters which have repeatedly been decided by the
courts, although amending the copyright act in
other respects, may be taken to be an acquiescence
in the judicial construction given
to the copy-
right laws. 27
The history of the bill in congress,
and the contemporaneous construction by the de-
partments or officers of the United States 29 may be
referred to in construing the act. Each part of the
act should be so construed as to give effect to the
legislative intent in the enactment of every other
part. It was the purpose of congress to include
in the act of 1909 all laws on the subject of copy-
right.31 This act excepted from its operation
causes of action for infringements already com-

30

or to prolong the time for the continuance of the same. Evans V. Robinson, 8 F. Cas. No. 4,571, Brunn. Coll. Cas. 400. See also Patents [30 Cyc 820].

22. See supra § 70.

23. Peo. v. Roberts, 159 N. Y. 70, 53 NE 685, 45 LRA 126 [rev 35 App. Div. 624, 54 NYS 1112].

Taxation of federal franchises and instrumentalities see Taxation [37 Cyc 8811.

24. American Tobacco Co. V. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595; Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109; Dicks v. Brooks, 15 Ch. D. 22; Gambart v. Ball, 14 C. B. N. S. 306, 108 ECL 306, 143 Reprint 463. Rules of statutory construction see Statutes [36 Cyc 1102].

25. Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 347, 28 SCt 722, 52 L. ed.

1086; American Tobacco Co. v. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595.

"While the nature of the property and the protection intended to be given the inventor or author as the reward of genius or intellect in the production of his book or work of art is to be considered in construing the act of Congress, it is evident that to secure the author the right to multiply copies of his work may be said to have been the main purpose of the copyright statutes." Bobbs-Merrill Co. v. Straus, supra.

"While it is true that the property in copyright in this country is the creation of statute, the nature and character of the property grows out af the recognition of the separate ownership of the right of copying from that which inheres in the mere physical control of the thing itself, and the statute must be read in the light of the intention of Congress to protect this intangible right as a reward of the inventive genius that has produced the work." American Tobacco Co. V. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595 [quot Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126].

"The object of the Copyright Act was to prevent any one publishing a copy of the particular form of expression in which an author conveyed ideas or information to the

21. Evans v. Robinson, 8 F. Cas. No. 4,571; Helm v. Huntington First Nat. Bank, 43 Ind. 167, 13 AmR 395 (holding that, as the federal government has continuously, from the adoption of the constitution down to the present time, legislated the subject of patents, and as. from the nature and subject of the power, it cannot conveniently world." Hollinrake V. Truswell, be exercised by the state, it must necessarily be exercised by the national government exclusively. "We are of the opinion that the legislature of Indiana possessed no power to pass the statute under consideration, and it must therefore be

held unconstitutional and void"). [a] Congress has the exclusive power to grant patents, and to renew

[1894] 3 Ch. 420, 424.

28

whether that work be scientific, literary, or artistic. The protection of authors, whether of inventions, works of art, or of literary compositions, is the object to be attained by all patent and copyright laws. The Acts are to be construed with reference to this purpose. On the other hand, care must always be taken not to allow them to be made instruments of oppression and extortion. It is on such considerations as these that fair reviews of literary works, although containing lengthy extracts from them, are not infringements of the copyrights of them." Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109, 128 (per Lindley, L. J.).

[a] Author rather than publisher. -In Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 10861, it was said in effect that copyrights are granted for the benefit of the author rather than the publisher. But in copyright matters it would seem that what benefits one necessarily benefits the other. Limitations on the market value of the author's the publisher decrease product.

[b] Artist's copyright."As was very well pointed out in the case of Gambart v. Ball, 14 C. B. N. S. 306, 108 ECL 306, 143 Reprint 463, and in Dicks v. Brooks, 15 Ch. D. 22, 36, the object of these Acts is both to protect the reputation of the artist from being lessened in the eyes of the world, and also to secure him the commercial value of his property-to encourage the arts by securing to the artist a monopoly in the sale of an object of attraction." Hanfstaengl v. Empire Palace, [1894] 3 Ch. 109, 133 (per Davy, L. J.).

26. Routledge v. Low, L. R. 3 H. L. 100; Griffin v. Kingston, etc., R. Co., 17 Ont. 660, 665.

27. White-Smith Music Pub. Co. v. Apollo Co., 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628.

28. White-Smith Music Pub. Co. v. Goff, 187 Fed. 247, 109 CCA 187; Oliver Ditson Co. v. Littleton, 67 Fed. 905, 15 CCA 61 [aff 62 Fed. 597].

29. Oliver Ditson Co. v. Littleton, 67 Fed. 905, 15 CCA 61 [aff 62 Fed. 597]; 28 Op. Atty.-Gen. (Wickersham) 150.

30. 28 Op. Atty.-Gen. (Wickersham) 176: 28 Op. Atty.-Gen. (Wickersham) 150.

31. 29 Op. Atty.-Gen. (Wickersham) 222.

"Copyright, like patent right, is a [a] Rule applied.-"The act of monopoly restraining the public from March 4, 1909, is entitled 'An act to doing that which, apart from the amend and consolidate the acts remonopoly, it would be perfectly law-specting copyright,' and the entire ful for them to do. The monopoly subject with reference to what works is itself right and just, and is may be copyrighted, and the manugranted for the purpose of prevent-facturing provisions relating to the ing persons from unfairly availing type and plates from which they themselves of the work of others, shall be printed, and what importa

mitted, which continued to be governed by the former law,32 But the act of June 18, 1874, providing for copyright of prints and labels designed to be used for articles of manufacture, by registration in the Patent Office, was not included in, and is not repealed by, the act of 1909.33

35

[§ 88] 2. Strict or Liberal Construction. While it has been said that copyright statutes are in derogation of the common law and, therefore, are to be strictly construed,34 it is now settled that the statute must be reasonably construed with a view to effecting the purposes intended by congress. The statute is not to be unduly extended by judicial construction so as to include privileges not intended to be conferred, nor so narrowly construed as to deprive those entitled to its benefits of the rights intended to be granted.36 the statute must receive a reasonable construction, While in any case

tions thereof are excluded, are fully covered by the provisions of this act; and consequently, all prior laws relating thereto are, by implication repealed. (Pana v. Bowler, 107 U. S. 529, 2 SCt 704, 27 L. ed. 424; U. S. v. Henderson, 11 Wall. (U. S.) 652, 20 L. ed. 235; Norris v. Crocker, 13 How. (U. S.) 429, 14 L. ed. 210)." Atty.-Gen. (Wickersham) 150, 151. 28 Op. 32. Whitmark v. Standard Music Roll Co., 221 Fed. 376, 137 CCA 184. [a] Rule of strict construction. "We must construe section limiting the 63 as remedy where the cause of action for inin instances fringement arose prior to July 1, 1909, or where pending, or to instances where there were then has been a violation of the statutes which existed prior to July 1, 1909, but which might not be prosecuted until after that date." Standard Music Roll Co., 221 Fed. Whitmark v. 376, 379, 137 CCA 184. 33. See infra § 141 34.

causes

White-Smith Music Pub. Co. v. Apollo Co., 147 Fed. 226, 77 CCA 368 [aff 139 Fed. 427, and aff 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 Ann Cas 628]; Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086].

are

not

at

[a] Rule of strict construction."We are of the opinion that rights sought to be protected by the these suits belong to the same class as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the passage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant. But in view of the fact that the law of copyright is a creature of statute, and is not declaratory of the common law, and that it confers distinct and limited rights, which did not exist at the common law, we are constrained to hold that it must be strictly construed, and that we liberty to extend either by resort its provisions, siderations or to a strained interto equitable conpretation of the terms of the statute." White-Smith Music Pub. Co. v. Apollo Co., 147 Fed. 226, 227, 77 CCA 368 [aff 139 Fed 427, and aff 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628] (refusing against perforated music rolls). protection 35. Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086; Aeolian Co. v. Roll Co., 196 Fed. 926; Dam v. Kirk Royal Music la Shelle Co.. 175 Fed. 902. 99 CCA 392, 41 LRANS 1002. 20 AnnCas 1173 [aff 166 Fed. 589]: Music Pub. Co. v. Apollo Co., 139 White-Smith Fed. 427 [aff 147 Fed. 226. 77 CCA 368 (aff 209 U. S. 1, 28 SCt 319, 52 L. ed. 655, 14 AnnCas 628)].

36.

Bobbs-Merrill

Co.

V. Straus.

[§§ 87-89

some sections, with a view to the immediate purpose of them, may receive a more liberal or a more strict construction than others.37 sections of the statute, if ambiguous, will be conThus the penal strued more strongly in favor of defendant than in the case of the remedial sections, but still in such a way as to effect substantial justice and carry out the obvious intention of congress. effect to what may be considered a purpose to pro38 As giving tect the inherent right of an author in his own work, the provisions of the copyright acts should receive a liberal construction.39 The statutes cannot be expected to do more than to secure the author and the public as far as is reasonably practicable.40

41

[89] 3. Extraterritorial Operation. The copyright laws of a country have no extraterritorial operation, except such as may be given them by virtue of treaties or conventions providing for 148 Fed. 642; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 American Lith. Co., 142 Fed. CCA 678 mem]; Werckmeister V. Myers v. Callaghan, 5 Fed. 726, 10 827: Biss. 139, 20 Fed. 441 [aff 128 U. S. 617. 9 SCt 177, 32 L. ed. 547].

210 U. S. 339, 28 SCt 722, 52 L. ed. 1086.

[a] Rule of reasonable construction. "The copyright statutes ought to be reasonably construed with a view to effecting the purposes intended by Congress. They ought not to be unduly extended by judicial construction to include privileges not narrowly construed intended to be conferred, rights Congress intended to grant." those entitled to their benefit of the as to deprive Bobbs-Merrill Co. v. Straus, 210 U. 1086. S. 339, 346, 28 SCt 722, 52 L. ed.

37.

nor SO

Bolles v. Outing Co., 175 U. S. 262, 20 SCt 94, 44 L. ed. 156; Edison v. Lubin, 119 Fed. 993 [rev on other grounds 122 Fed. 240, 58 CCA 604 (app dism 195 U. S. 625, 25 SCt 790, 49 L. ed. 349)].

this

38. Bolles v. Outing Co., 175 U. S. 262, 20 SCt 94, 44 L. ed. 156 (holding that Rev. St. § 4965, imposing a penalty of one dollar for every infringsession, is a penal statute within ing sheet found in defendant's posrule); Caliga Newspaper Co., 157 Fed. 186, 84 CCA V. Inter-Ocean 634 [aff 215 U. S. 182, 30 SCt 38, 54 L. ed. 1501; Walker v. Globe Newspaper Co., 130 Fed. 593 [rev on other grounds 140 Fed. 305, 72 CCA 77, 2 LRANS 913, 5 AnnCas 274 (rev on 726, 52 L. ed. 1096)]; Edison v. Luother grounds 210 U. S. 356, 28 SCt bin, grounds 122 Fed. 240. 58 CCA 604 119 Fed. 993 [rev on other (app dism 195 U. S. 625, 25 SCt 790, 49 L. ed. 349)]; Bennett v. Carr, 96 Fed. 213, 37 CCA 453; Tuck v. Priester, 19 Q. B. D. 629. Brady, 69 Fed. 285 (holding that Rev. See Daly v. copyrighted St. § 4966, making one presenting a without the consent of the proprietor thereof liable in damages, is a penal dramatic composition statute). See generally Statutes [36 Cyc 1183]. "If the language be plain, it will be construed words of the statute given their full as it reads, and the meaning; if ambiguous, the court will defendant than it would if the statlean more strongly in favor of the ute were remedial. will endeavor In both cases it to effect substantial justice." Bolles v. Outing Co., 175 U. S. 262, 265, 20 SCt 94, 44 L. ed. 156.

alty.-If there is a reasonable inter[a] Avoiding or minimizing penpretation which will avoid the penalty in any particular case, it should able constructions, the more lenient be adopted. If there are two reasonone should be given. settled rule for the construction of Such is the penal sections. Hildesheimer Faulkner, [1901] 2 Ch. 552, 1 BRC 755 [cit Tuck v. Priester, 19 Q. B. D. 6291.

V.

Kaufman, 189 Fed. 215: Bracken v.
39. National Cloak, etc., Co. V.
Posenthal, 151 Fed.
Charles E. Blaney Amusement Co..
136: Ford V.

law are to be liberally construed to
"The provisions of the copyright
insure to the author the product of
Donohue,
his brain." Jenkins, J., in Holmes v.
77 Fed.
Harper v. Donohue, 144 Fed. 491, 496
179, 180 [quot
mem)].
(aff 146 Fed. 1023 mem, 76 CCA 678

publishers should be so guarded and
protected as to give them the prac-
"The right given to authors and
tical benefits the law meant them to
215 Fed. 772, 779.
receive." Ginn v. Apollo Pub. Co.,
ally construed to give effect to its
"This act no doubt should be liber-
tenor and
215, 217.
true intent."
Cloak, etc., Co. v. Kaufman, 189 Fed.
National

shown a tendency to widen, rather
"The Supreme Court has lately
copyright act (Act July 8, 1870, c.
than to
230, 16 Stat. 212 [U. Š. Comp. St.
narrow, the scope of the
1901, p. 3405]).
son Lith. Co., 188 U. S. 239, 23 SCt
Bleistein v. Donald-
298, 47 L. ed. 460."
Amusement Co. v. Wilton, 134 Fed.
Empire City
132, 133.
40.

C. Merriam Co., 208 U. S. 260, 266, 28
United Dictionary Co. v. G. &
SCt 290, 52 L. ed. 478.

to do more than to secure the author
"The statutes cannot be expected
and the public so far as is reasonably
practicable. The obvious plan is not
Dictionary Co. v. G. & C. Merriam
to be distorted by the chance that
Co., supra.
ingenuity may find some way to slip
through the law uncaught." United

41. Dictionary Co. v. G. & C. Merriam Ferris v. Frohman, 223 U. S. 424, 32 SCt 263, 56 L. ed. 492; United Co., 208 U. S. 260, 28 SCt 290, 52 L. Co., 191 U. S. 267, 24 SCt 105, 48 L. ed. 478; McLoughlin v. Raphael Tuck ed. 178 [aff 115 Fed. 85, 53 CCA 508]; Reprint 1159; Jefferys v. Boosey, 4 Boosey v. Purday, 4 Exch. 145, 154 H. L. Cas. 815, 10 Reprint 681; ChapReprint 491. pell v. Purday, 14 M. & W. 303, 153 extraterritorially. They can only be saved by statute are not recognized "Such rights of authors as are enforced in the sovereignty of their origin." 183, 184. 23 Blatchf. 347. Mikado, etc.. Case, 25 Fed. [a] Books "The right, however, of the defendpurchased abroad. ant to use in this country the books which he bought abroad depends on the law of this country, and not on the law of the place of sale. copyright in this country confers The upon the plaintiff rights here which no contract of sale abroad by other persons can deprive him of." v. George, [18961 2 Ch. 866,

, same title, page and note number

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