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R.S. 4966, and was not qualified by the words “for profit” as in the present Act except when the unlawful performance was "willful,” which made it a misdemeanor). At the same time (1831), the first term was extended to 28 years with the privilege of renewal for 14 years solely to the author or his widow or children. In 1856, dramatic compositions, with the right of public performance thereof, were added (11 St. L. 138); in 1865, photographs (13 St. L. 540); in 1870, paintings, drawings, sculpture and models or designs for works of the fine arts.

This Act of 1870 (16 St. L. 212, R.S. 4948-71) facilitated the whole process by centralizing the copyright business in the Library of Congress, then located in the Capitol Building. It was about this time that the general movement for international copyright began to gather momentum and there was much agitation for it in this country as well as abroad. The result in the United States was the so-called International Copyright Act of 1891 (26 St. L. 1106), by the terms of which the copyright privilege was for the first time made available to foreigners—but only on the hard condition of their complying with the age-old requirement of entry of title, notice and deposit, as well as that of American manufacture of "any book, photograph, chromo or lithograph.” Thus it was essentially a national rather than an international measure.

The result on the other side, however, was the Berne Convention of 1886 which established an International Copyright Union and hence was a distinct contribution to universal law. During all the years since, it does not appear to have been treated by any of the member nations as a mere "scrap of paper". On the contrary, it has proved an eminently practicable scheme. Under this Convention, as subsequently amended, protection was made automatic throughout all the countries acceding to it in behalf of the authors and artists of every country in the world, whether inside or outside of the Union, and without the need of complying with any formalities whatever, the sole condition being publication of the work in any Union country not later than the date of publication elsewhere. The protection of unpublished works under the Convention was and still is limited to citizens or residents of a Union country.

It was the declared purpose of the sponsors of the Berne Convention to make the system so simple and perfect that all countries would ultimately be induced to come in on its merits; and hence provision was made for periodic conferences to revise and amend the Convention in the light of practical experience. That they have succeeded in their aim is demonstrated by the fact that beginning with a membership of only ten countries, it has now increased to over 40, embracing all the leading countries of the world except the United States, Russia, China and the LatinAmerican republics except Brazil, Haiti and Chile. It is noteworthy that in all the conferences leading up to this Union, as well as subsequent ones at Paris (1896), Berlin (1908) and Rome (1928), the initiative was taken by the authors and artists themselves, who appear to have had everything much their own way unhampered by other classes and interests such as printers, binders, paper-makers, publishers and others engaged in the manufacture and sale of copyright material*; whereas, in the copyright conferences on this side, then, as now, these and various other well-organized interests have exercised powerful influence throughout. And well they might, for it is upon their enterprise, skill and investment that the author must largely depend for the pecuniary reward of his labors.

The United States having failed to qualify for the International Copyright Union, there followed still more piecemeal domestic legislation, so that by the beginning of the 20th century there existed a variety of miscellaneous Copyright Acts difficult of interpretation and full of traps for the unwary author. In 1903, the then recently-appointed first Register of Copyrights, Mr. Thorvald Solberg, who has ever been an outstanding champion of copyright law reform, made a special report on the whole subject of domestic legislation and recommended one consolidated Act. (See his review in 35 Yale Law Jour. No. 1, Nov. 1925, p. 61). This led to fruition in the Copyright Act of March 4, 1909 (35 St. L. pt. 1, pp. 1075-88, U.S. Code, Tit. 17), which, with some minor amendments, is the law in force today.

The Copyright Act of 1909 was the outcome of several years of painstaking labor and extensive discussion on the part of every interest involved, including eminent members of the bar. Care was taken to use in the text, as far as possible, words and


See the official organ of the Union, Le Droit d'Auteur, first issue, Jan. 15, 1888.

phrases which had already received judicial construction; and around it has grown during the last 30-odd years a considerable body of court decisions. In its final form, however, the Act was very largely a compromise measure, being a composite of several tentative bills and proposals embodying different points of view and interests, and changes appear to have often been made in one place without the necessary corresponding changes in other places, resulting in a lack of clearness and coherence in certain sections which has caused no little perplexity in the practical administration of the Act, not to speak of disturbance in the mind of the interested public.

Moreover, the subsequent development of the movies and the radio and the changes in business methods and practices have brought new factors to be reckoned with, and while the courts have found the terms of the Act fairly adaptable to meet the situation, there has been a lack of uniformity in their application to particular cases. However, some notable improvements over the old law were achieved, among which may be mentioned: (1) Making the subject-matter of copyright include "all the

writings of an author," thus broadening the field in con

formity with the Constitution. (2) Exempting books of foreign origin in foreign languages

from the need of being reprinted in the United States (this being the greatest advance from the international

standpoint). (3) In case of published works, making copyright date from

publication with the notice, instead of from the date of filing the title, which often took place long before the work

was ready for publication. (4) Making statutory copyright available for unpublished

works designed for exhibition, performance or oral

delivery. (5) Extending the renewal term of protection by 14 years, to

bring the possible maximum term of protection up to 56

years. (6) Making the certificate of registration prima facie evidence

of the facts recorded in relation to any work. Nevertheless, this substantial progress fell far short of meeting the fundamental requisites of the Convention, because the

formalities of notice, deposit and registration were retained, as well as the requirement of American manufacture of books and periodicals in the English language even though of foreign origin. The American system is in direct contrast to that existing in most foreign countries at the present time, which have largely dispensed with formalities as a prerequisite to protection. Some critics consider that it has on the whole proved eminently suited to American needs; others, that it has outgrown its usefulness. However that may be, it will be apparent from our survey of the present law that in some particulars there is room for improvement both for domestic and international purposes. *


The whole problem of copyright law reform, especially in relation to the international aspect, has engaged the attention of Congressional Committees for many years. For a comprehensive study, see article in Har. vard Law Review, March, 1938, Vol. 51, No. 5, pp. 906-923.

Chapter II

Subject-Matter of Copyright

Part 1—General Characteristics of Copyrightable


Consider for a moment the pregnant terms used in the Constitutional provision upon which the Copyright Act is founded, namely, Article 1, Section 8, Clause 8, 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.”

The word "science” is here apparently used in the comprehensive sense of knowledge or learning (L: scire), as well as in its more restricted modern sense; and the term “useful arts," while covering things of utility, "is not limited to that which satisfies immediate bodily needs," Holmes, J., in Bleistein v. Donaldson, 188 U.S. 239 (1903). Hence both terms are equally applicable to copyrights and patents; and the subject matter must tend to promote progress in each sphere of activity and thereby "promote the general welfare" as indicated in the preamble to the Constitution.

In his standard treatise on the "Law of Property in Intellectual Productions”, published in 1879 but still often quoted on fundamentals, Eton S. Drone earnestly contended that the term “securing” in this clause of the Constitution meant, with respect to authors, merely the confirming of a right already existing at common law; but as already noted, the courts both in England and in this country had long before settled this question to the effect that Parliament and Congress in passing the first Copyright Acts did not sanction an existing right, but created a new one, the enjoyment and exercise of which depended upon strict compliance with the terms of the statute.

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