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of the law; which is another good reason for sending the copy at the earliest possible time following publication abroad.
Contributions to English periodicals come within the purview of this section; at least the Copyright Office so regards them, since the term "book” here as elsewhere in the Act does not refer to the physical make-up of the work but to the literary content. In contrast to the practice of the Office with respect to contributions to American periodicals, several instalments of the English publication will be accepted within the 60-day limit for registration on one application and fee. The reason for this distinction is that in the former case the copyright comes into existence immediately the instalment is published; whereas in the latter case, the ad interim copyright does not exist until the deposit is made. Extension of Copyright to Full Term
Section 22 of the Copyright Act tells what must be done to secure an extension of the ad interim copyright. It is not a model of clarity, but the general purport seems to be that whenever within the interim period the book shall be (1) produced and published in the United States, and (2) duly registered on deposit of copies with application and affidavit of American manufacture, then and then only "the copyright shall be extended to endure in such book for the full term elsewhere provided in this Act.” Both conditions are essential to the extension, but while the publication must take place within the interim term, the deposit and registration may and frequently does take place at variable times after the expiration of that term. Computation of the Term
Assuming that the American edition has been published and registered as prescribed in section 22, the question arises, from what date shall be reckoned the beginning of the "full" term of copyright? The "elsewhere" mentioned in the final clause is immediately at hand in the next section (23) which provides “That the copyright secured by this Act shall endure for twentyeight years from the date of first publication..."
There seem to be three possible constructions: that the full term shall be reckoned (1) from the date of original deposit of the foreign edition, or (2) from the date of publication of the American edition, or (3) from the date of first publication abroad. The difficulty with (1) is that it would be out of harmony with section 23. The difficulty with (2) is that it would cause utter lack of uniformity, since publication of the American edition is not alone sufficient for the extension; there must be deposit and registration as well, for which there is no specific time limit. Moreover, it would result in giving a longer term of protection to foreign books (counting in the ad interim term) than that accorded to books of doméstic origin, which presumably Congress did not intend.
This leaves (3) as the logical method of computation, being in complete harmony with the quoted provision of section 23. The question is of special importance in connection with renewals, and the Copyright Office has adopted the third method as being, on the whole, best calculated to safeguard the interests of the renewal claimants. During all the years the Act has been in operation this question of proper computation of the term has never come up for adjudication. Failure to Secure Interim Copyright or Reprint in Time
If no ad interim protection has been secured in the first instance through failure of the copy to arrive in due time, or, if secured, the American edition is not gotten out within the prescribed term of four months after deposit, as not infrequently happens, the book is open to piracy for the time being and may perhaps go into the public domain; but not necessarily. There is still a fighting chance. If the author subsequently complies with the manufacturing provisions and publishes his book with the required notice, he has given American labor the benefit sought by the statute and may fairly expect to be protected at least from that time on, subject to any intervening equities that may have arisen in behalf of any person with respect to such book. At any rate, the Copyright Office has always been inclined to give the author the benefit of the doubt, if there be any, and make registration for whatever it may be worth. It may be worth nothing, but it gives the applicant an opportunity to have his case tested in court should infringement occur. No test case has arisen as yet.
Chapter X Statutory Requisites for Copyright in
Common-law Rights (Section 2)
In the introductory chapter reference was made to the dual system of common-law protection for unpublished works and statutory protection for published works, which originated in England and was substantially adopted in the United States from the beginning. The age-old distinction was abolished by Act of Parliament in 1911 (1 & 2 Geo. 5, Ch. 46, sec. 31), and the protection of literary property, whether published or unpublished, was brought within the terms of the Copyright Act. The American Copyright Act of 1909 fell short of this and expressly preserved the common-law right in section 2 as follows:
"That nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication or use of such unpublished work without his consent, and to obtain damages therefor." The corresponding provision in the prior law was:
"Every person who shall print or publish any manuscript whatever without the consent of the author or proprietor first obtained, shall be liable to the author or proprietor for all damages occasioned by such injury.” (R. S. 4967, as amended by the Act of 1891.)
Observe that section 2 broadens the scope of the prior law by substituting the word "work” for “manuscript”, and the addition of the words “or use" makes clear that the commonlaw rights are more absolute in some respects than the statutory rights granted in section 1. For example, in the case of a lecture or musical work, the author or proprietor may recover damages for unauthorized use thereof whether “for profit” or not, and in the case of a drama, for the performance thereof in private as well as in public. Likewise, the exercise of the right of mechanical reproduction of a musical composition would seem to belong exclusively to the author or proprietor, free from the so-called compulsory license provisions in section 1(e).
Statutory Rights (Section 11)
The Act of 1909 departed from the historic policy of restricting statutory copyright to published works by providing in section 11:
“That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production Class (c)] or a dramatic or dramatico-musical composition [Class (d)] or a musical composition [Class (e)]; of a photograph or other identifying reproduction thereof, if it be a work of art [Class (g)] or a plastic work or drawing [Class (i)]; of a photographic print if the work be a photograph [Class (j)]; of a title and description, with one print taken from each scene or act, if the work be a motion-picture photoplay [Class (1)]; of a title and description, with not less than two prints taken from different sections of a complete motion picture, if the work be a motion-picture other than a photoplay [Class (m)]."
This act of grace was accorded these particular classes because they are primarily adapted for performance or exhibition and may achieve their purpose without being reproduced in copies for sale or public distribution. This section, therefore, being an exception to the general rule, must be deemed limited in its operation to the kinds of works specifically named therein. Kreymborg v. Durante, 22 USPQ 248 (1934). Unpublished scripts orally delivered via the radio would undoubtedly be included here, as similar productions to lectures. As remarked by the court in the Kreymborg case, “In its mention of a production similar to a lecture, sermon or address, Congress plainly meant a production likewise intended in the first instance for oral communication. A speech, argument, debate, interview, perhaps even an informal talk, would be a 'similar production'." "Not Reproduced for Sale"
The phrase "not reproduced for sale' has been construed to
* The sequence of classes in section 11 has been changed somewhat to agree with the order in section 5.
be practically equivalent to “unpublished" at the time deposit is made. “The Act recognizes expressly in section 11 copyright in an unpublished work." Leibowitz v. Columbia Graph Co., 298 F. 342 (1923). So also in Patterson v. Century Productions, 35 USPQ 471 (CCA 2, 1937): "Thus the Copyright Act of 1909 departed from the previous limitation of a statutory copyright to published works . . . and as the plaintiff did in the first instance comply with section 11 his copyright so obtained was valid for an unpublished work and so long as it remained unpublished he was not required to do more to keep his copyright valid for the statutory period.” Here the subject matter was a motion picture actually reproduced in copies at the time and exhibited under restricted conditions, but not as yet commercially exploited by sale or public distribution.
Congress itself, in the amendatory Act of 1928 respecting copyright fees, put its seal of approval on this interpretation in providing that “in the case of any unpublished work registered under the provisions of section 11, the fee for registration with certificate shall be $1.”
However, as already noted in connection with the question of publication (p. 57), a work may be published in other ways than by reproduction in copies for sale, such, for example, as paintings and statues exposed in public without restrictions as to copying, the originals of which are eligible for registration under this section even though so exposed to public inspection. Duration of Copyright under Section 11
The constitutionality of section 11 has been questioned because there is no express provision made in the Act for the duration of the copyright sought to be secured thereunder. Article 1, Section 8, clause 8 of the Constitution requires that the exclusive right granted by Congress shall be for a “limited” time. Section 8 of the Act provides that the copyright secured for any work shall endure "for the terms specified in this Act." Section 23 provides "That the copyright secured by this Act shall endure for twenty-eight years from the date of first publication”, subject to renewal for a like term.
A literal reading of this clause in section 23 obviously leaves the problem unsolved for unpublished works deposited under section 11. But, as remarked by the Supreme Court in American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907), “in constru