When the framers of the Constitution assembled, the situation was that an author seeking to protect his work must comply with the varying requirements of twelve different states in order to secure his work throughout the country. This was burdensome and unsatisfactory, and the states readily delegated to the Federal Congress the power to legislate upon both copyright and patents. The eighth section of Article I of the Constitution provides:

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."

It is interesting to recall the old records. Congress had hardly assembled under the new Constitution when petitions for copyright began to pour in, each petitioner asking for the protection of his own work. Mr. Jedediah Morse, of Massachusetts, prayed for protection for his "Geography," and especially for two original maps which had been especially prepared therefor; and Daniel Ramsey, of South Carolina, sought to protect his "History of the American Revolution." Congress, however, did not deal with the matter piecemeal, and in 1790 the first Copyright Act of the United States was passed. In all, twelve revisions of the Act were made down to the complete revision of 1909. It is, of course, not my purpose to trace these different revisions, but to call your attention to the matter of international copyright, and to the decisions under these Acts which led to the final revision.

INTERNATIONAL COPYRIGHT

The Copyright Law of the United States did not provide for the protection of foreign authors and their works. The law as it stood down. to 1890 provided:

"That any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, etc. . . . shall, upon complying with the provisions of this act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same.'

We were a nation of pirates. The great works of foreign writers, Scott, Dickens, Thackeray, Eliot, Huxley, Carlyle and the others, could be and were appropriated by American publishers without compensation and sold to the American public. Great works like the Encyclopædia Britannica were anybody's property here.

Let it be said to the credit of many of our publishing houses, however, that they made arrangements with foreign authors to bring out what were known as "authorized editions," and made full compensation. Of course they had to compete with cheaper editions upon which no royalty was paid, but they nevertheless adhered to an honesty which in many instances proved to be the best policy. The American public repudiated its law makers, and bought the "authorized editions.'

Strenuous efforts were made to pass an International Copyright Act. In 1837 Henry Clay reported an International Copyright Bill in Congress, and it was thereafter reported by him five times without success.

He was supported by Mr. Webster and many others. Nearly every year thereafter the matter was taken up in some form. Memorials were presented to Congress. Several treaties were proposed. Communications from foreign governments on the subject were received, and two Presidents made recommendations in their annual message. The final struggle occupied about five years. International Copyright leagues were formed all over the country. Public hearings were had; authors' readings given to raise funds; sermons preached, and nearly every newspaper of importance in the country took the matter up. It is doubtful if even then the bill could have been passed but for the assistance of the typographical unions. They had feared that the granting of American copyright to foreign authors would result in much bookmaking being conducted abroad, in spite of the tariff, and insisted upon what is known as the typesetting clause," whereby a copyright should be made dependent upon the deposit at Washington of two copies printed from type set in the United States, or from plates made therefrom. Even at the end, so many amendments were presented that there was only an hour's leeway after an all-night session before the adjournment of Congress when the necessary votes were taken.

The Doing of Justice

You will pardon me, I hope, for something of reminiscence. A part of the money for this campaign was raised here by an authors' reading at the Boston Museum. It was a notable occasion. Oliver Wendell Holmes read several of his poems, including, perhaps for the last time, "The Last Leaf on the Bough" and "The One Horse Shay." Mark Twain recited "New England Weather." Mrs. Howe recited "The Battle Hymn of the Republic." Cable and Johnson read from their works.

I have also in mind, particularly, a night in Washington when Senator Chase told Mr. Houghton, Mr. Estes, and me that the bill could not pass without reaching some agreement with the typographical unions. It was long after midnight, and we canvassed the situation with great anxiety. The result was the drafting of the clause in substantially the same form in which it exists to-day:

"Provided, That in the case of a book, photograph, chromo, or lithograph, the two copies of the same required to be delivered or deposited as above shall be printed from type set within the limits of the United States, or from negatives, or drawings on stone made within the limits of the United States, or from transfers made therefrom."

A meeting of the Authors' and Publishers' Leagues in New York was called, and we made a report of the proposed concession to the typographical unions. Opposition was made, one author saying that he would rather wait another half century for the Act than get it on such terms.

On our arrival in Boston, a meeting of the International Copyright League was called, and President Eliot, presiding, controlled the situation definitely and finally. He said that the opposition to the typesetting clause rested upon economic grounds, and the question of doing justice to foreign authors was a moral question, and that the latter must prevail. The Act passed, March 3, 1891.

And now for the final revision of the Act in 1909. The old copyright law was about as bad as it was possible for any law to be. Each of the twelve states which originally enacted copyright laws made different requirements for the vesting of copyright. Congress, in effect, adopted all of these requirements, and made them conditions precedent to the securing of copyright. Under the law, copyright protection could not be had by an author, no matter how meritorious or laborious his work, no matter how great a service to science his books may have been, unless he, or his publisher, or his publisher's clerk, conformed to these statutory requirements: (1) that the title of his work should, on or before the day of publication, be delivered at the office of the Librarian of Congress at Washington, or deposited in the mail addressed to the Librarian; (2) that not later than the day of publication two copies of his work should be delivered or deposited as above stated; (3) that the two copies so deposited should have been printed from type set within the limits of the United States, or from plates made therefrom, and it was further provided that an author should not maintain an action for an infringement of his copyright unless he shall give notice thereof by inserting in the several copies of each edition published, on the title-page or the page immediately following if it be a book, or on some visible portion if it be a map or other article, the following words, namely:

"Entered according to the act of Congress, in the year office of the Librarian of Congress, at Washington ";

by A. B., in the

or the word "Copyright," with the year and his name. Copyright protection could be had only by a strict compliance with these conditions. The Court could not aid a person who had failed to comply. There was no possible room for construction. These provisions were traps for the feet of the unwary.

so many

So an earnest and widespread movement was started for the complete revision of the copyright laws of the United States. It is impossible to go into details concerning this struggle. Past experience had taught the friends of copyright that great delays were to be expected; but a strange thing happened. In the closing hours of Congress, in March of 1909, two bills for revision had been reported, one to the Senate and one to the House. They were alike in substance, but varied in two important particulars, one the length of copyright and the other concerning "canned music." In the ordinary course of things, the bills would have failed, but a Massachusetts Congressman, Mr. Washburn, determined that the bills should pass: telephones were kept hot; Congressman and Senators knew no rest until compromises were reached on both these particulars, and the bill passed on the third day of March, and was signed by the President on the fourth. The Act threw the old acts into the scrap basket and started de novo.

No analysis of the Act can be attempted here, but it is well to say that the old prerequisites of copyright have been shorn of their power to rob an author or artist of the fruits of his labor. These provisions are no longer prerequisite, and copyright is simply and easily obtained.

"Any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this act ";

and, with reference to the notice, it is provided:

"That where the copyright proprietor has sought to comply with the provisions of this Act with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies, shall not invalidate the copyright."

So much for the story of copyright and its many vicissitudes.

What is Protected by Copyright?

It is generally assumed that the copyright law protects the entire contents of a work, ideas, facts, illustrations, and the like. This is a mistake. All that is protected is the vehicle or particular form in which the author conveys his ideas. Knowledge can never become a monopoly. Any one is at liberty to read, digest, and appropriate the ideas of a copyright work. If he passes them through the crucible of his own mind, approaches them from another point of view, adds other facts and ideas, in short, does really intellectual and literary work, he is at liberty to make use of the ideas and facts of the pre-existing work. He cannot, however, paraphrase, adapt, and condense another man's work, with no real addition of his own, and be protected against the charge of piracy.

Who is an Author?

It is interesting to note the broad construction which has been given to the word "author" in the Constitution. You will remember that that document provides that —

Congress shall have power to promote the progress of science and useful arts, by securing for limited times, to authors, etc."

It was a short step to admit artists, musicians, dramatic writers, and map makers within the meaning of the word. It has gone, however, beyond that. The maker of motion pictures is now deemed to be an author. A photographer who selects a landscape or poses his subject and adjusts the lights and shadows is an artist. The maker of a directory though the literary quality is confined to names, occupations, and addresses is nevertheless held to be a literary man. A stenographer who takes down an oral speech is enough of an author to secure copyright. A maker of prints and pictorial illustrations comes within the definition. Newspapers, periodicals, lectures, sermons, and addresses are also entitled to protection.

The Duration of Copyright

The constant tendency has been to increase the term of copyright. Mexico, as I have said, grants perpetual protection. France gives an author protection for his life and for fifty years thereafter, having risen by gradual stages from life and ten years to life and fifty years.

You will remember that the Statute of Anne gave a term of twentyone years on then existing works, and of fourteen years, with a right of renewal for fourteen years more, on books not then published. This

was increased from time to time until 1841, when the term was still further extended.

The contest which resulted in this extension was memorable. In this year 1841, the debates in Parliament were notable for the persons engaged in them.

Quoting from Scrutton:

"Members generally were much impressed by the hardships which had lately befallen prominent men of letters and by petitions presented by writers then in full popular fame or tending to it. Scott had died, just when the copyright of his earliest and most successful novels were expiring, leaving his family in great financial difficulties. Wordsworth's works were only becoming popular when they ceased to bring him any return. Southey's literary career was known to have been much altered by his pecuniary needs and the shortness of the copyright on his works. Alison presented a very important statement with reference to the remuneration for his History, a work of great magnitude and expense and of slow return. Thomas Hood wrote a petition, from which the following quotations are made:

"The very law of nature protests against a law which requires an author to write for everybody's posterity except his own.'

By the present arrangement, posterity is bound to pay everybody or anybody but the true creditor.'

And again,

"That cheap bread is as desirable and necessary as cheap books, but it has not yet been thought necessary to ordain that after a certain number of crops all corn fields ought to be public property.'

"There was also a petition from Thomas Carlyle, who described himself as 'a writer of books,' setting forth that your petitioner has written certain books, being incited thereto by certain laudable considerations, that his labors have found hitherto in money or money's worth small recompense or none, but he thinks if ever it be so, it will be at some distant time when he, the laborer, will probably no longer be in need of money and those dear to him will still be in need of it.'

Strangely enough, Macaulay was the chief opponent to a greatly extended term. As one writer said:

"Literature's own familiar friend, in whom she trusted and who has eaten of her bread, has lifted up his heel against her."

Hume stood with Macaulay, while Bulwer, Disraeli, Gladstone, Lord John Russell, and others, were of the other mind. The upshot of it all was that the term was extended to forty-two years, or for the life of the author and seven years beyond, whichever is the longer term. In the year 1910, in the general revision of the English copyright Acts, the term was extended to the life of the author and fifty years beyond.

In the United States, the term was originally fixed in 1790 at fourteen years, with a right of renewal for fourteen years more, corresponding to the Statute of Anne. In 1831 it was extended to twenty-eight years, with a right of renewal for fourteen years, and this continued to be the law down to the revision of 1909. One of the objects of that revision was a further extension. The United States then granted the shortest, or nearly the shortest, term given in any civilized country. When it seemed as if the general Act would fail of passage, it was urged that at least the term should be extended by a separate Act. Authors were confined in negotiations with publishers to a term of only twentyeight years, because the renewal right was vested in the widow and children, if the author had died, and it was doubted whether he could