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other self-governing dominion desiring it (sec. 25). Mr. Fisher accordingly introduced a bill in the Canadian Parliament on April 26, 1911, dealing comprehensively with copyright in Canada and following on general lines the resolutions of the Conference, particularly in regard to countries outside of the International Copyright Union (e.g. the United States) whose domestic laws were out of harmony with the principles of the Berne Convention. But at this juncture the matter was overshadowed by the larger question of commercial reciprocity with the United States, which brought on a general election in Canada resulting in the defeat of the government of which Mr. Fisher was a member, and likewise the permanent shelving of his bill.
The Canadian government took no further definite action in relation to new copyright legislation for a whole decade, when an entirely different policy towards the United States in the copyright sphere was inaugurated.
The Canadian Copyright Act of 1921 (11 and 12 Geo. V. Ch. 24, effective January 1, 1924) authorized the Minister of Trade and Commerce to certify by notice in the Canada Gazette that any country which has not adhered to the Berne Convention but grants or undertakes to grant to citizens of Canada the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to that conferred by the Act, shall be treated "as if it were a country to which the Act extends”.
Under date of December 27, 1923, the President issued a proclamation to the effect that on and after January 1, 1924 "citizens of Canada will be entitled to all the benefits of the Act of March 4, 1909, including section 1(e) thereof [relating to mechanical musical reproduction) and the Acts amendatory of the said Act."
Thereupon the Canadian Minister published in the Canada Gazette (Vol. 57, No. 26, Dec. 29, 1923, p. 2157) a notice to the effect that from the 1st day of January, 1924, the United States "shall for the purpose of the rights conferred by the said Act be treated as if it were a country to which the said Act extends." In explanation, the Canadian Commissioner of Patents (who exercises general supervision over copyright administration) issued on January 5, 1924, a notice in which the following paragraph appears:
"By the certificate of the Minister of Trade and Commerce for the Dominion of Canada dated the 26th of December, 1923, and published in the Canada Gazette on the 29th of December, 1923, citizens of the United States have been since the 1st of January, 1924, entitled to the full protection of the Copyright Act, 1921, as amended by the Copyright Amendment Act, 1923, without the performance of any formalities.” [Italics supplied.]
This exchange of privilege was hardly a quid pro quo, since the President's proclamation expressly required that "the enjoyment by any work of the rights and benefits conferred by the Act of March 4, 1909, and the acts amendatory thereof, shall be conditioned upon compliance with the requirements and formalities prescribed with respect to such works by the copyright laws of the United States.” This of course has reference particularly to the "manufacturing clause" in section 15 of our Act, in the case of a book or periodical. The anomalous result is that if a French Canadian publishes his book in Canada in the French language, with the copyright notice required by our law, he thereby acquires copyright protection for the book in the United States, including the sole right of translation into other languages. But if he does publish a translation thereof into English, then in order to protect such translation in the United States he must print or reprint it in the United States and otherwise conform to the requirements of our law.
All rights conferred by the Canadian Act are required by its mere operation without the observance by the author of any formality whatever. Registration is not necessary. It is optional and may be had by application in accordance with the prescribed rules and forms, copies of which can be obtained from the Registrar of Copyrights at Ottawa. While registration is not a prerequisite for securing copyright in Canada, it seems advisable because, in case of infringement the certificate of registration establishes for the plaintiff a prima facie subsisting copyright and that the person registered is the owner of such copyright (sec. 36, subs. 2).
Under the amendatory Act of 1931, the publisher of every book published in Canada is required to deliver to the Librarian of Parliament, at Ottawa, within three months after publication, two copies of the first edition, and also two copies of every subsequent edition containing additions or alterations. Such deposit is not made a condition to protection of the work, nor is there any penalty annexed for failure to make it.
The Act contains a further provision to the effect that any person may obtain from the Minister of Trade and Commerce a license to print and publish in Canada an edition of any copyright book (paying to the author the royalties prescribed in such event] if the author fails to have the book printed in Canada. This provision has remained practically a dead letter, for if the demand for the book in Canada is sufficient to justify the expense of reprinting, the author or publisher may give the prescribed undertaking to bring out a Canadian edition of the work, whereupon the license is withheld (sec. 14, subs. 5). It is learned from authoritative Canadian sources that, during all this time, only two applications for such licenses have been filed with respect to books in the English language, but in each case the prescribed undertaking was given and the license was not issued. Ву amendment of the Act in 1931, the citizens of countries which have adhered to the Berne Convention are exempt from this licensing provision. Latin-American Countries
Argentina, Chile, Cuba and Mexico come within category (A), as "proclaimed countries”. On the other hand, 13 of the LatinAmerican countries come within category (B) by virtue of their having ratified the copyright Convention signed at Buenos Aires, August 11, 1910, namely, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay, Peru and Uruguay. The United States ratified this Convention by Presidential proclamation issued July 13, 1914, “to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof." (For full text, see Appendix.)
This represents the nearest approach the United States has yet come to complete reciprocity in the international copyright field. The pertinent provision of the Convention is found in Article 3 as follows:
"The acknowledgement of a copyright obtained in one state in conformity with its laws shall produce its effects of full right 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."
It is the law in force in the country of first publication in America that determines what formalities, if any, must be complied with in the first instance. But upon such compliance the intention seems clearly to be that the work shall be automatically protected in all the other countries parties to this Convention without the need of complying with any additional requirements in such countries; provided the work bears notice of reservation of the property right. The words “Copyright Reserved”, or the equivalent in any other language, would seem sufficient to meet . the requirement.
A revision of this Convention took place at Havana in 1928, specifying in Article 3 that the notice of copyright reservation on copies shall include the name of the copyright proprietor, the country of origin (i.e., that of first publication), and the year date of such publication. Only five countries appear to have ratified this Convention, namely, Costa Rica, Ecuador, Guatemala, Panama and Nicaragua. Nevertheless, these five are still bound by the Buenos Aires Convention (1910) in their copyright relations with the other parties thereto.
There have been various other Pan-American Conventions, but that of Buenos Aires remains the basic instrument, both on account of its merits and the extent of its acceptance. If the other seven republics to the south (Argentina, Bolivia, Chile, Cuba, Salvador, Mexico, Venezuela) were also to ratify this Convention, the result would be a uniform agreement between 21 American countries to acknowledge and protect the right of literary, musical and artistic property on the sole condition of complying with the laws of the country of first publication (including the easy burden of indicating on the work itself a notice of copyright reservation).
There is one important right, however, which this Convention does not expressly cover, namely, the right of mechanical musical reproduction by means of phonograph records, etc. In the case of Portuando v. Columbia Phonograph Co., 36 USPQ 104 (SD NY 1937), the court observed that Article 6 of the Convention provides that "authors or their assigns ... shall enjoy in the signatory countries the rights which the respective laws accord"; that the United States law (section 1 (e)) denies this right unless
substantially similar protection is accorded to citizens of the United States, and that the existence of the necessary reciprocal conditions must be signalized by a Presidential proclamation. Inasmuch as the plaintiff was a citizen of a country (Dominican Republic) whose laws did not afford such protection, no proclamation had been, or could be, issued, and the complaint was accordingly dismissed.
Had the Convention provided for the protection of this right in the ratifying countries, the plaintiff might have fared differently. For the Supreme Court has ruled that a treaty is a law of the land as an Act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined, and that “when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it, as it would to a statute.” Head Money Cases, 112 U.S. pp. 598-9 (1884). See also Bacardi Corp. v. Domenech, 311 U.S. 150, 47 USPQ 350 (1940).