THE statute of Anne, the foundation of the present copyright system, which took effect April 10, 1710, gave the author of works then existing, or his assigns, the sole right of printing for twenty-one years from that date and no longer; of works not printed, for fourteen years and no longer, except in case he were alive at the expiration of that term, when he could have the privilege prolonged for another fourteen years. Penalties were provided, which could not be exacted unless the books were registered with the Stationers' Company, and which must be sued for within three months after the offence. If too high prices were charged, the Queen's officers might order them lowered. A book could not be imported without written consent of the owner of the copyright. The number of deposit copies was increased to nine. The act was not to prejudice any previous rights of the universities and others.

This act did not touch the question of rights at common law, and soon after its statutory term of protection on previously printed books expired, in 1731, lawsuits began. The first was that of Eyre vs. Walker, in which Sir Joseph Jekyll granted, in 1735, an injunction as to "The Whole Duty of Man," which had been first published in 1657, or seventy-eight years before. In this and several other cases the Court of Chancery issued injunctions on the theory that the legal right was unquestioned. But in 1769 the famous case of Millar vs. Taylor, as to the copyright of Thomson's "Seasons," brought directly before the Court of King's Bench the question whether rights at common law still existed, aside from the statute and its period of protection. In this case Lord Mansfield and two

other judges held that an author had, at common law, a perpetual copyright, independent of statute, one dissenting justice holding that there was no such property at common law. In 1774, in the case of Donaldsons vs. Beckett, this decision was appealed from, and the issue was carried to the highest tribunal, the House of Lords.

The House of Lords propounded five questions to the judges. These, with the replies,* were as follows:

I. Whether at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale; and might bring an action against any person who printed, published, and sold the same without his consent? Yes, 10 to I that he had the sole right, etc., and 8 to 3 that he might bring the action.

II. If the author had such right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person afterward reprint and sell, for his own benefit, such book or literary composition against the will of the author? No, 7 to 4.

III. If such action would have lain at common law, is it taken away by the Statute of 8th Anne? And is an author, by the said statute, precluded from every remedy, except on the foundation of the said statute and on the terms and conditions prescribed thereby? Yes, 6 to 5. IV. Whether the author of any literary composition and his assigns, had the sole right of printing and publishing the same in perpetuity, by the common law? Yes, 7 to 4.

*The votes on these decisions are given differently in the several copyright authorities. These figures are corrected from 4 Burrow's Reports, 2408, the leading English parliamentary reports, and are probably right.

V. Whether this right is any way impeached, restrained, or taken away by the Statute 8th Anne? Yes, 6 to 5.

These decisions, that there was perpetual copyright at common law, which was not lost by publication, but that the statute of Anne took away that right and confined remedies to the statutory provisions, were directly contrary to the previous decrees of the courts, and on a motion seconded by the Lord Chancellor, the House of Lords, 22 to 11, reversed the decree in the case at issue. This construction by the Lords, in the case of Donaldsons vs. Beckett, of the statute of Anne, has practically "laid down the law" for England and America ever since.

Two protests against this action deserve note. The first, that of the universities, was met by an act of 1775, which granted to the English and Scotch universities and to the colleges of Eton, Westminster, and Winchester (Dublin was added in 1801) perpetual copyright in works bequeathed to and printed by them. The other, that of the booksellers, presented to the Commons February 28, 1774, set forth that the petitioners had invested large sums in the belief of perpetuity of copyright, but a bill for their relief was rejected. In 1801 an act was passed authorizing suits for damages [at common law, as well as penalties under statute] during the period of protection of the statute, the need for such a law having been shown in the case of Beckford vs. Hood, wherein the court had to "stretch a point" to protect the plaintiff's rights in an anonymous book, which he had not entered in the Stationers' Register. An act of 1814 extended copyright to twentyeight years and for the remainder of the life of a surviving author, and relieved the author of the necessity of delivering the eleven library copies, except on demand. These deposit copies were reduced to five by the act of 1836.

In 1841, under the leadership of Sergeant Talfourd, a great debate on copyright, in which Macaulay took a leading part in favor of restricted copyright, was started in the Commons, which resulted in the act of 1842 (5 and 6 Victoria), repealing the previous acts, and presenting a new code of copyright. It practically preserved, however, the restrictions of the Statute of Anne.

The copyright term was made the author's lifetime and seven years beyond, but in any event at least forty-two years. The Judicial Committee of the Privy Council may authorize publication of a posthumous work in case the proprietor of the copyright refuse to publish. Articles in periodicals, etc. have the same copyright term, but they revert to the author after twenty-eight years. Subsequent acts extend copyright to prints and like art works, designs for manufactures, sculptures, dramas, musical compositions, lectures, for various terms and under differing conditions.

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The present law of England as to copyright, says the Report of the Royal Copyright Commission, in a Blue Book of 1878, consists partly of the provisions of fourteen Acts of Parliament, which relate in whole or in part to different branches of the subject, and partly of common law principles, nowhere stated in any definite or authoritative way, but implied in a considerable number of reported cases scattered over the law reports." The Digest, by Sir James Stephen, appended to this Report, is presented by the Commission as "a correct statement of the law as it stands." This Digest is, perhaps, the most valuable single contribution yet made to the literature of copyright, but the frequency with which such phrases occur as "it is probable, but not certain," "it is uncertain," "probably," "it seems, show the state of the law, "wholly destitute of any sort of arrangement, incomplete, often obscure," as says the Report itself. The Digest is accompanied, in parallel columns, with alterations suggested by the Commission, and it is much to be regretted that their work failed to reach the expected result of an Act of Parliament. The evidence taken by the commissioners forms a second Blue Book, also of great value. A new copyright law is now under consideration in England.

It seems possible that, under the precedent of the acts of 1775 and 1801, the common law rights practically taken away by the statute of Anne could be restored by legislation. Its restrictions have not only ruled the practice of England ever since, but they were embodied in the Constitution of the United States, and have influenced alike our legislators and our courts.

THE Constitution of the United States authorized Congress "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." Previous to its adoption, in 1787, the nation had no power to act, but on Madison's motion, Congress, in May, 1783, recommended the States to pass acts securing copyright for fourteen years. Connecticut in January, 1783, and Massachusetts in March, 1783, had already provided copyright for twenty-one years. Virginia in 1785, New York and New Jersey in 1786, also passed copyright acts, and other States were considering them, thanks to the vigorous copyright crusade of Noah Webster, who travelled from capital to capital,

when the United States statute of 1790 made them unnecessary. This act followed the precedent of the English act of 1710, and gave to authors who were citizens or residents, their heirs and assigns, copyrights in books, maps, and charts for fourteen years, with renewal for fourteen years more, if the author were living at expiration of the first term. A printed title must be deposited before publication in the clerk's office of the local United States District Court; notice must be printed four times in a newspaper within two months after publication; a copy must be deposited with the United States Secretary of State within six months after publication; the penalties were forfeiture and a fine of fifty cents for each sheet found, half to go to the copyright owner, half to the United States; a remedy was provided against unauthorized publication of manuscripts.

This original and fundamental act was followed by others :-in 1802, requiring copyrigh

record to be printed on or next the title-page, and including designs, engravings, and etchings; in 1819, giving United States Circuit Courts original jurisdiction in copyright cases; in 1831 (a consolidation of previous acts), including musical compositions, extending the term to twenty-eight years, with renewal for fourteen years to author, widow, or children, doing away with the newspaper notice except for renewals, and providing for the deposit of a copy with the district clerk (for transmission to the Secretary of State) within three months after publication; in 1834, requiring record of assignment in the court of original entry; in 1846 (the act establishing the Smithsonian Institution), requiring one copy to be delivered to that, and one to the Library of Congress; in 1856, securing to dramatists the right of performance; in 1859, repealing the provision of 1846 for the deposit of copies, and making the Interior Department instead of the State Department the copyright custodian; in 1861, providing for appeal in all copyright cases to the Supreme Court; in 1865, one act again requiring deposit with the Library of Congress, within one month from publication, another including photographs and negatives; in 1867, providing $25 penalty for failure to deposit. This makes twelve acts bearing on copyright up to 1870, when a general act took the place of all, including "paintings, drawings, chromos, statues, statuary, and models or designs intended to be perfected as works of the fine arts." did away with the local District Court system of registry, and made the Librarian of Congress the copyright officer, with whom printed title must be filed before, and two copies deposited within ten days after, publication. In 1873-74

This

the copyright act was included in the Revised Statutes as Sections 4948 to 4971 (also see Secs. 629 and 699), and in 1874 an amendatory act made legal a short form of record, Copyright, 18-, by A. B.," and relegated labels to the Patent Office.

The act of 1790 received an interpretation, in 1834, in the case of Wheaton vs. Peters (rival law reports), at the bar of the United States Supreme Court, which placed copyright in the United States exactly in the status it held in England after the decision of the House of Lords in 1774. The court referred directly to that decision as the ruling precedent, and declared that by the statute of 1790 Congress did not affirm an existing right, but created a right. It stated also that there was no common law of the United States, and that (English) common law as to copyright had not been adopted in Pennsylvania, where the case arose. So late as 1880, in Putnam vs. Pollard, claim was made that this ruling decision did not apply in New York, which, in its statute of 1786, expressly “provided, that nothing in this act shall extend to, affect, prejudice, or confirm the rights which any person may have to the printing or publishing of any books or pamphlets at common law, in cases not mentioned in this act." But the N. Y. Supreme Court decided that the precedent of Wheaton vs. Peters nevertheless held.

As in the English case of Donaldsons vs. Beckett, the decision in the American ruling case came from a divided court. The opinion was handed down by Justice McLean, three other judges agreeing, Justices Thompson and Baldwin dissenting, a seventh judge being absent. The opinions of the dissenting judges (see Drone,

p. 43 et seq.) constitute one of the strongest statements ever made of natural, rights in literary property, in opposition to the ruling that the right is solely the creature of the statute. "An author's right," says Justice Thompson, "ought to be esteemed an inviolable right established in sound reason and abstract morality."

The application of copyright law, unlike that regarding patents, is solely a question of the courts. The Librarian of Congress is simply an officer of record, and makes no decisions, as is well stated in his general circular in reply to queries:

"I have to advise you that no question concerning the validity of a copyright can be determined under our laws by any other authority than a United States Court. This office has no discretion or authority to refuse any application for a copyright coming within the provisions of the law, and all questions as to priority or infringement are purely judicial questions, with which the undersigned has nothing to do.

"A certificate of copyright is prima facie evidence of an exclusive title, and is highly valuable as the foundation of a legal claim to the property involved in the publication. As no claim to exclusive property in the contents of a printed book or other article can be enforced under the common law, Congress has very properly provided the guarantees of such property which are embodied in the "Act to revise, consolidate, and amend the statutes relating to patents and copyrights," approved, July 8, 1870. If you obtain a copyright under the provisions of this act, you can claim damages from any person infringing your rights by printing or selling the same article; but upon all questions as to what constitutes an infringement, or what measure of damages can be recovered, all parties are left to their proper remedy in the Courts of the United States."

The many perplexities that arise under our complicated and unsatisfactory law, as it stands at present, suggest the need here, as in England, of a thorough re-modelling of our copyright system.

V.

THE United States law (Revised Statutes, Secs. 4948-71, being the act of July 8, 1870; also amendatory act of June 18, 1874) mentions as subjects of copyright any book, map, chart, dramatic or musical composition, engraving, cut, print, photograph or negative thereof. . . painting, drawing, chromo, statue, statuary models or designs intended to be perfected as works of the fine arts," and excludes (amendment of 1874), as subject only to registry in the Patent Office, prints or labels not connected with the fine arts" but " designed to be used for any other articles of manufacture." The English laws now cover much the same ground. The United States statute expressly provides, however, that "nothing in this chapter shall be construed to prohibit the printing, publishing, importation or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed or made by any person not a citizen of the United States nor resident therein."

The

The word "book" covers the great body of copyright property, and has been many times the subject of judicial construction giving the most comprehensive meaning to the term. English judges early held that protection "could not depend upon the form of the publication;" "that a composition on a single sheet might well be a book within the meaning of the Legislature ;" and that "any composition, whether large or small, is a book within the meaning of this Act." The law of 5 and 6 Vict. (1842) afterward specifically construed the word "book' "to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart or plan, sep

arately published." The law of the United States makes no definition of the term, but our judges have followed the English precedent, Judge Thompson holding, in Clayton vs. Stone, that a "book" " may be printed only on one sheet," and that the literary property intended to be protected by the Act is not to be determined by the size, form or shape. . . but by the subject matter," and Judge Leavitt, in Drury vs. Ewing, that a diagram for cutting dresses, with directions, printed on a single sheet, being" the product of thought and mental toil," was a "book" within the benefit of the law.

In fact, though all English and American statutes have been avowedly for 'the encouragement of learning" and "the progress of science and useful arts," the courts have construed the laws to cover in the widest sense any "useful book." They have denied copyright protection only to works having absolutely no literary quality, such as advertisements (unless they contain original literary matter) and advertising cuts, labels, blank-books, or a cricket score-card; and even booksellers' and other trade catalogues, having descriptive notes or distinctive arrangement and combination, can be copyrighted. Compilations of existing materials, from common sources, arranged and combined in an original and useful form, receive the same protection as wholly original matter, and Mr. Drone schedules English or American judicial constructions extending this principle to: (1) general miscellaneous compilations; (2) annotations consisting of common materials; (3) dictionaries; (4) books of chronology; (5) gazetteers; (6) itineraries, road and