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Note that the requirement of American manufacture also applies to the "illustrations within a book consisting of printed text and illustrations produced by lithographic or photo-engraving process” and also to “separate lithographs or photo-engravings, except where in either case (i. e., whether in books or published separately) the subjects represented are located in a foreign country and illustrate a scientific work or reproduce a work of art.” The last clause is not strictly grammatical, for it is clear that it is not the subjects located abroad that “illustrate a scientific work or reproduce a work of art,” but the reproductions thereof in the form of lithographs or engravings. A painting transported abroad for the sole purpose of having a lithograph or photo-engraving made, and the original then brought back, would not come within the exception, because it could not properly be said to be “located” in a foreign country. On the other hand, it does not appear to have been the intention to make any distinction between works of art based upon the purposes for which they are created; at least the Attorney General has so declared, and also that it is for the Register of Copyrights to determine whether, in fact, they are works of art within the meaning of the law. 28 Op. Att. Gen. 150 (1910). The proviso to this section 15 reads:

“That said requirements [i.e., as to typesetting, etc., in the United States) shall not apply to works in raised characters for the use of the blind, or to books of foreign origin in a language or languages other than English (already excepted in the opening clause], or to books published abroad in the English language seeking ad interim protection under this Act [manifestly so], or to works printed or produced in the United States by any other process than those above specified in this section.”

It is not clear why "periodicals" in foreign languages were not included in the exception in favor of books of foreign origin. Perhaps it was thought unnecessary, since individual contributions would come within the definition of "book”, and therefore the aggregate in composite form might enjoy the same privilege. The Copyright Office accepts them for registration in the "book” category.

In the case of dramas and musical compositions the courts, in construing the former law, held that these were not included in the term "book" and could therefore be copyrighted in the United States without regard to the manufacturing requirements. Hervieu v. Ogilvie, 169 F. 978 (1909), drama in French; Littleton v. Ditson 62 F. 597 (1894), cantata of 90 pages with French text. The same ruling has been accepted in principle by the Copyright Office as governing under the present Act. No test case appears to have arisen as yet in the courts.

Among the exceptions to the manufacturing requirements must also be included picture books without "printed text” (so held in Basevi v. O'Toole Co., Inc., 40 USPQ 334 (1939)); likewise, from the nature of the case, the illustrations in a book of foreign origin in foreign language, and certain foreign dictionaries, text books and the like principally in foreign language but containing incidentally words and phrases in English.

The closing clause of this proviso was inserted (at the request of the Copyright Office) by way of amendment in 1926 for the purpose of eliminating any lingering doubt that books could be copyrighted irrespective of how they are made. The Attorney General had already rendered an opinion in 1910 substantially to the same effect, that the manufacturing provisions were not intended to restrict the form or method by which the author may impart his ideas to the public. 28 Op. Att. Gen. 265. The amendment goes somewhat farther, however, in that it requires that, whatever the process of reproduction may be, such process must be performed in the United States (with the exceptions already noted above).

Affidavit

Section 16 of the Act requires an affidavit to accompany the copies of "the book", setting forth certain facts as to manufacture in the United States. This of course applies only to books in the English language printed or produced in the manner prescribed in section 15.* No affidavit is required to accompany the copies of a periodical or other copyright work; nor is it necessary for an attorney to file a power of attorney to act in behalf of his client either in relation to making the affidavit or applying for registration.

* Also to books in foreign language by American authors or residents.

Demand by Register for Deposit of Copies

Section 13 of the Copyright Act provides that "should the copies (or copy) called for by section 12 of this Act not be promptly deposited as herein provided the Register of Copyrights may at any time after the publication of the work upon actual notice, require the proprietor of the copyright to deposit them.” Failure to respond by the required deposit may result in dire consequences to the delinquent, nothing less than a heavy fine and loss of copyright.

The “notice” here does not refer to the statutory notice of copyright, which must necessarily appear on the copies, but simply means that the Register may notify the proprietor of his delinquency and require him to obey the law. The word "herein" obviously refers to section 12, being probably a misprint for “therein", and so, if and when the required deposit is made, the copies or copy should be "accompanied in each case by a claim of copyright” as provided by that section; in other words, by an application for registration of the claim announced to the public by means of the statutory notice.

There is no regular channel for detecting delinquencies except through the Card Division of the Library of Congress when requests are received from other libraries for catalogue cards, and such requests are usually confined to publications of major importance.

Free Transmission by Mail

Section 14 provides for free transmission through the mail of any copy or copies for the purpose of registration. If sent through other channels, the necessary charges of transportation must be paid. But under the ruling of the Post Office Department, this provision does not extend to correspondence or the application and fee for registration. These should be sent in a separate envelope bearing first-class postage. It is inadvisable, however, to paste the envelope upon the package containing the copies. Franking labels for such packages are not supplied by the Copyright Office but are available at the local postoffices.

Chapter IX

Ad Interim Copyright

Prior Law

The so-called "ad interim" provisions of the Copyright Act were of course an outgrowth of the stringent "manufacturing" provisions of the Act of 1891, wherein protection of foreign books in any language was conditioned upon reprinting from type set in the United States and depositing two copies of such reprint not later than the date of publication “in this or any foreign country". (R. S. 4956, as amended by the Act of 1891.)

In 1904 an Act was passed "to afford protection to exhibitors of foreign literary, artistic or musical works at the Louisiana Purchase Exposition”, upon deposit in the Library of Congress of one copy of the work; such protection to endure for “two years from the date of the receipt" of the copy. It was further provided that if at any time during that period "two copies of the original text of any such book, or of a translation in the English language", printed from type set in the United States, were deposited, the copyright should be extended to the full term of 28 years, to be computed from the date of the receipt of the copy of the foreign edition. (33 St. L., pt. 1, p. 4.)

This was followed by the Act of March 3, 1905, which provided in substance that (1) whenever one complete copy of a book in foreign language, first published abroad, shall be deposited within 30 days thereafter, bearing "a notice of reservation of copyright" on its title page and on all other copies sold or distributed in the United States, and (2) whenever within one year after first publication abroad, the requirements applicable to domestic works as to filing of title, notice and deposit of two copies in the original language, "or of a translation in the English language", printed in either case from type set in the United States, were duly complied with, (3) the copyright should be extended to the full term of 28 years, to be computed from the original date of recording the title. (33 St. L., pt. 1, p. 1000.) It was admitted by the framers of this rather involved Act that an opportunity was unavoidably left open for anyone to appropriate the author's book and bring out a piratical edition during the time necessary to produce and print an authorized edition of the original or a translation in the United States.

Present Law

A similar loophole seems to exist in section 21 of the present Act which as amended in 1919 reads as follows:

“That in the case of a book first published abroad in the English language the deposit in the Copyright Office, not later than sixty days after its publication abroad, of one complete copy of the foreign edition, with a request for reservation of the copyright and a statement of the name and nationality of the author and of the copyright proprietor, and of the date of publication of the said book, shall secure to the author or proprietor an ad interim copyright, which shall have all the force and effect given to copyright by this Act, and shall endure until the expiration of four months after such deposit in the Copyright Office."

It is clear that the ad interim copyright cannot begin until the copy is received in the Copyright Office. If Congress had intended to grant an absolute protection for a possible 60 days to every such book by mere force of publication abroad, without any indication, prior to the time of deposit, that the proprietor meant to "seek" copyright in the United States, it is safe to assume that Congress would have so declared in no uncertain language. Statutes are not to be deemed retroactive in effect unless the language plainly so indicates. Black on Interpretation of Laws, 2nd ed., p. 385. The Bureau of the Customs will permit anyone to import copies of the foreign edition prior to deposit under this section, but not thereafter if proper notice is given. See Customs Regulations, in Appendix. Hence it is by all means advisable for the author or proprietor to act betimes and thereby minimize the risk of possible piracy before the copy is deposited.

And note that the foreign published copy must be deposited “in the Copyright Office" within the specified period. It is not sufficient that it be deposited “in the mail”; it must actually reach the Copyright Office or the Library of Congress in time, or the registration cannot be made. Delay or miscarriage in the mail is no excuse for any failure to comply with this requirement

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