tion is sought, but cannot exceed the term of protection granted by the country of origin.13 Both conventions expressly provide that works of authors belonging to a nonunion country, but first published in a country of the Union shall be protected throughout the Union," subject, however, to the right of discrimination against nonunion countries which do not grant adequate protection to authors of Union countries given by the Protocol of 1914.45 The remedies for infringement of copyright are governed by the law of the country in which the infringement takes place, and the courts of one country have no jurisdiction with respect to infringements in other countries.* Where an international copyright is owned by different persons in different countries, the owner in one country has no right to import his books into the other country." 46 47 48 [§ 456] 2. Of Montevideo, Mexico, Rio de Janeiro, and Buenos Aires. There have been several treaties or conventions between American countries on the subjet of copyright. Montevideo. A convention was signed at Montevideo in 1889 which was ratified by several South American countries and adhered to by several European countries,50 whose accession, however, was accepted by only some of the parties to the convention and accordingly became binding only on them. This convention differed radically from the Berne Convention in several respects. Thus it did not create an International Union, but was a mere treaty by which the signatory states agreed to recognize and protect the rights of literary and artistic property in accordance with its stipulations.51 It provided that the author or his successors should enjoy in all the states the rights accorded to him by the law of the state in which 43. Berlin Convention art 7; Berne Convention art 2; Baschet v. London Illustrated Standard Co., [1900] 1 Ch. 73. 44. Berlin Convention art 6; Berne Convention art 3. 45. See supra note 38 [a]. 46. Baschet v. London Illustrated Standard Co., [1900] 1 Ch. 73. "In the case of any literary or artistic work first published in any one of the foreign countries of the union' constituted by the Berne Convention, 1886, which is entitled to British copyright protection, all the remedies for infringement provided by the English law are available to the proprietor of the copyright, suing in England, notwithstanding that they may be more extensive than those allowed in the country where the work is first published." 8 Halsbury L. Eng. p 142. or [a] Rule applied. "I now come to the question of law to which I referred. It arises under s. 2, sub-s. 3, of the International Copyright Act, 1886. which provides that, The International Copyright Acts and an order made thereunder shall not confer on any person any greater right longer term of copyright in any work than that enjoyed in the foreign country in which such work was first produced. That is agreeable to the Berne Convention of 1887, which provides that "The enjoyment of these rights is subject to the accomplishment of the conditions and formalities prescribed by law in the country of origin of the work, and cannot exceed in the other countries the term of protection accorded in the said country of origin': Scrutton on Copyright, 3rd ed. p. 286. As I understand it, the principle is shortly this: A man cannot sue here in respect of a work published in the country of origin-in this case France-unless he proves that he is entitled to pro first publication or production of the work shall have taken place.52 This makes the law of the country of origin follow the work into all the other countries, and compels the citizens of those countries to observe a foreign law, which is a principle open to obvious objections. It is directly contrary to the principle of the Berne and Berlin conventions under which the measure of protection to be accorded is regulated by the domestic law of the country in which protection is sought, subject to the minimum rights specified in the convention itself which are uniform for all countries of the Union.53 The Montevideo Convention does, however, like the Berne Convention, prescribe a minimum of protection which must be accorded in specified classes of cases. The term of protection provided is that accorded by the law of the country where protection is sought, but may be limited to that of the country of origin if the latter period is less.54 The United States has never acceded to this convention. Mexico. A copyright convention was signed in the City of Mexico in 1902, at what is known as "The Second Pan-American Convention.'' 55 This convention followed the general lines of the conventions of Berne and Montevideo. The signatory states constituted themselves into a Union for the purpose of recognizing and protecting literary and artistic property." The protection accorded was that granted by the domestic law of the country where protection was sought, ,57 in which respect this convention followed that of Berne and differed from that of Montevideo. The term of protection was not to exceed that granted in the country of origin." A necessary formality to secure protection was the filing of a petition claiming the right, and the deposit of two copies of the work and additional tection in that country of origin; 47. Morocco Bound Syndicate. Ltd. 56 58 an English author, to restrain a threatened infringement by a British subject in any foreign country comprised in the International Copyright Union). "Any action or proceedings for infringement, or for any offence relating to copyright, must be brought in the country where the infringement or offence is committed, even though the offender be a British subject and resident in the United Kingdom." 8 Halsbury L. Eng. p 142. 48. Pitts v. George, [1896] 2 Ch. 866 (where it was held that, where an English copyright is subsisting in a book first published in a foreign country, it is unlawful for anyone, without the consent of the proprietor of the English copyright, to import into England for sale copies of the book published abroad, although lawfully printed by the owner of the original copyright in the country where the book was first published). 49. [a] Countries ratifying Montevideo convention.-Argentina, Bolivia, Paraguay, Peru, and Uruguay. The convention was not ratified by Brazil or Chile, although signed by their delegates. France, Spain, Italy, and Bel 50. gium. 51. 52. 53. 54. 55. Montevideo Convention art 1. Montevideo Convention art 4. [a] The first "Pan-American Convention" was held at Washington in 1890, and resulted merely in the adoption of a recommendation that the several American countries should become parties to the Montevideo Convention. Briggs International Copyright p 473. 56. Convention of Mexico art 1. 57. Convention of Mexico art 5. 58. Convention of Mexico art 5. 59. Convention of Mexico art 4. 60. Proclamation by the President, April 9, 1908 (35 St. at L. 1934). 61. Guatemala, Salvador, Costa Rica, Honduras, and Nicaragua. 62. See infra this section text and note 65 et seq. 63. Senate Document No. 365 pp 76-83, 59th Congress, 2d Session Copyright Office Information Circular No. 14. 64. Guatemala, Salvador, Nicaragua, Costa Rica, and Chile. 65. Copyright Office Information Circular No. 55; Copyright Office Bul. No. 14 (1917 ed) p 44. wholly or in part. Convention and establishes a true international copyright as between the signatory states in that it provides that a copyright acquired in accordance with the laws of any one of the states shall be protected in all the others without the necessity of complying with any other formality, provided only that there shall appear in the work a statement indicating a reservation of the property right. Subject to the minimum of rights declared in the convention, the extent of protection is governed by the laws of the state where protection is sought, without those rights being allowed to exceed the term of protection granted in the country of origin. At the time of writing, this convention has been ratified or adhered to by a majority of American governments, as enumerated below," and it is to be hoped that the remaining countries which participated in framing this convention will soon ratify it, and thus create a true Pan-American copyright. "Article 5. The author of a protected work, except in case of proof to the contrary, shall be considered the person whose name or well-known nom de plume is indicated therein; consequently suit brought by such author or his representative against counterfeiters or violators, shall be admitted by the Courts of the Signatory States. hibited, but in every case the source from which it is taken must be cited. News and miscellaneous items published merely for general information, do not enjoy protection under this Convention. "Article 12. The reproduction of extracts from literary or artistic publications for the purpose of instruction or chrestomathy does not confer any right of property, and may, therefore, be freely made in all the signatory countries. "Article & The authors or their assigns, citizens or domiciled foreigners, shall enjoy in the signatory countries the rights that the respect-priation of unauthorized parts of a ive laws accord, without those rights being allowed to exceed the term of protection granted in the country of origin. For works comprising several volumes that are not published simul 66. [a] Participants in Buenos Aires Convention-Argentina, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nica-taneously, as well as for bulletins, ragua, Panama, Paraguay, Peru, Salvador, United States, Uruguay, and Venezuela. 67. Copyright Office Bul. No. 14 (1917 ed) p 44; Copyright Office Information Circular No. 55. [a] The Convention of Buenos Aires, omitting formal recitals, is as follows: "Article 1. The signatory States acknowledge and protect the rights of Literary and Artistic Property in conformity with the stipulations of the present Convention. "Article 2. In the expression 'Literary and Artistic Works' are included books, writings, pamphlets of all kinds, whatever may be the subject of which they treat, and whatever the number of their pages; dramatic or dramatico-musical works; choreographic and musical compositions, with or without words; drawings, paintings, sculpture, engravings; photographic works; astronomical or geographical globes; plans, sketches, or plastic works relating to geography, geology or topography, architecture or any other science; and, finally, all productions that can be published by any means of impression or reproduction. "Article 3. The acknowledgment of a copyright obtained in one State, in conformity with its laws, shall produce its effects of full rights in all the other States without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right. "Article 4. The copyright of a literary or artistic work, includes for its author or assigns the exclusive power of disposing of the same, of publishing, assigning, translating, or authorizing its translation and reproducing it in any form whether or parts, or periodical publications, the term of the copyright will commence to run, with respect to each volume, bulletin, part, or periodical publication from the respective date of it publication. "Article 7. The country of origin of a work will be deemed that of its first publication in America, and if it shall have appeared simultaneously in several of the signatory countries, that which fixes the shortest period of protection. "Article 8. A work which was not originally copyrighted shall not be entitled to copyright in subsequent editions. "Article 9. Authorized translations shall be protected in the same manner as original works. Translators of works concerning which no right of guaranteed property exists, or the guaranteed copyright of which may have been extinguished, may obtain for their translations the rights of property set forth in Article 3rd, but they shall not prevent the publication of other translations of the same work. "Article 10. Addresses or discourses delivered or read before deliberative assemblies, Courts of Justice, or at public meetings may be printed in the daily press without the necessity of any authorization, with due regard, however, to the provisions of the domestic legislation of each nation. "Article 11. Literary, scientific, or artistic writings, whatever may be their subjects, published in newspapers or magazines in any one of the countries of the Union, shall not be reproduced in the other countries without the consent of the authors. With the exception of the works mentioned, any article in a newspaper may be reprinted by others, if it has not been expressly pro "Article 13. The indirect appro literary or artistic work, having no original character, shall be deemed an illicit reproduction, in so far as affects civil liability. The reproduc tion in any form of an entire work, or of the greater part thereof, accompanied by notes or commentaries under the pretext of literary criticism or amplification, or supplement to the original work, shall also be considered illicit. "Article 14. Every publication infringing a copyright may be con fiscated in the signatory countries in which the original work had the right to be legally protected, without prejudice to the indemnities or penalties which the counterfeiters may have incurred according to the laws of the country in which the fraud may have been committed. "Article 15. Each of the Governments of the signatory countries shall retain the right to permit, inspect, or prohibit the circulation, representation, or exhibition of works or productions, concerning which the proper authority may have to exercise that right. "Article 16. The present Convention shall become operative between the Signatory States which ratify it, three months after they shall have communicated their ratification to the Argentine Government, and it shall remain in force among them a year after the date when it may be denounced. This denunciation shall be addressed to the Argentine Government and shall be without force except with respect to the country making it." 38 St. at L. 1785. 68. Convention of Buenos Aires art 3. 69. Convention of Buenos Aires art 6. 70. Convention of Buenos Aires art 6. 71. [a] Parties to convention of Buenos Aires.-United States, Dominican Republic, Guatemala, Honduras, Panama, Nicaragua, Ecuador, Bolivia, Brazil. Costa Rica, Paraguay, and Salvador. Incident to injunction, 353. Evidence of profits, 432. Theatrical season as unit, 354, n 98. Extent and elements of recovery, 354. Foreign sales, 354, n 78. Infringing and innocent parts not sepa- rable, 354. Limitation of amount, 354, n 78. Innocence as a defense, 353. Laches, as ground for denying, 353. Nature of work, song, 353, n 72. Notice of copyright, omission as a defense, 353. Printer and binder, liability for profits, 354. Right to accounting, 353. Statutory provisions, 353. Acknowledgment Assignment executed in foreign country, 249. Acquiescence Injunction, as a defense to, 348. Actions Actions--Continued Conditions precedent, actions for infringe- By copying from manual on art of, 266, Costs, 436, 437. Decrees, 435. Defenses, actions for infringement, 382-392. Evidence, 412-432. False representations of authorship, 60, n 65. Of common-law rights, 60–62. In equity, 62. Of copyright, 336-438. Issues, proof, and variance, 411. Nature and form: For forfeitures, 379. For infringement of common-law property, For infringement of copyright, 377-379. Parties, actions for infringement, 385-387. Process, 384. Stationers' Hall, registration at, necessity, 174. Venue, actions for infringement, 383. Actors Voice, motion, and postures of, not copyright- Adaptations Adapter as an author, 146. Drama based on another drama, originality, 109. Notice of copyright, repetition of original, 219. As affecting question of infringement, 283. As property, when not reduced to writing, 10, As subject of copyright, 104. Infringement of, 312. Publication of, what constitutes, 53. Unpublished, copyright in, how secured, 182. [1235] Art Works-Continued [The figures refer to section and note numbers] Canvassing for orders, 324, n 86. Reversed copies from wood block, 325, n 87. Literary property in, 3. Living pictures or tableaux, 325. Modeling included in sculpture, 114. Notice of copyright on original, 219. In production of lithograph, as, 114, n 20. Pen or pencil sketch, 326, n 7. As infringement, 325. Of living picture, as infringement, 58. Picture post cards, 116, n 29. Prints from lawful plates, 324, n 86. Distinct photographs of same model, 50. Replica, sale of, as publication of paint- Sale as a publication, 50. Reproductions of, as subject of copyright, 116. Sale of physical object, 38. Right to make copies, 67. Sculpture included, 114. itor's bill, 255. Bona fide purchasers, 250. Common-law property: Assignee entitled, 26. In art work apart from physical object, Construction and operation of, 252. Effect on right to sell copies, 252. Of dramatic right, reserving publication Of performing rights, 252, n 80. Of play, conditions as to production, 252, To periodical, implied reservations, 38, n 52. Equitable assignments, 39. Assignment-Continued Future works, 39, 251. Assignability of, 258. Distinguished from assignments, 248. Notice of copyright, substitution of assignee's Notice of prior equities, 250. Parol agreement to assign, 251. Colonial rights, 247, n 33. Dramatization rights, 247, n 19. Engraving rights, 247, n 19. Record of, in copyright office, 250. Right to copy withheld, 247, n 19. Territorial performing rights, 247, n 22. Parties, right of assignee to sue, 385. Priority between assignees, 39. Publication, duty of assignee to publish, 38. Canada statute, 250. Allowance, in actions for infringement, 436. Australia Copyright in, 81. Author and Authorship Abridgments, 146. Adapter of dramatic work, 146. After parting with literary property, not enti- Annals and authorship distinguished, 91, n 65. Arranger of musical work, 146. Authorship, necessity of, to support copyright, Biographical notes made from replies to in- Burden of proof, of authorship, to support Common-law rights of, 2. Consent of, necessity of, to validity of copy- Control over publication, after assignment, 38. |