Prior Law Chapter IX Ad Interim Copyright 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 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 domestic 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 |