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except as such importation may be by the British copyright proprietor or with his assent.
(2) Would seem to except by implication the original foreign edition of works of which there is merely a British reprint [but the contrary was held by the court in Pitts v. George).
(3) Makes no specific exception in favor of libraries or other institutions or individuals, except as one may be implied in the words " for sale or hire" [but see remarks of Rigby, L. J., in Pitts v. George).
1814. Section 10 (1) absolutely prohibits importation without assent of the British copyright proprietor of "all copies
printed or reprinted in any foreign country except that in which such books were first published; " and puts such copies on the same basis as pirated editions.
(2) Omits the words “ for sale or hire."
NOTE.— (1) The “ foreign reprints act” of 1847 suspended the operation of the act of 1814 as regarded colonial reprints of British copyrighted works, stipulating only for a duty of 20 per cent, to go to the British copyright proprietor as royalty.
Note.—(2) The copyright commission of 1876 reported adversely to the admission of reprints either way, on the ground that it “would probably operate injuriously toward British authors and publishers, and that it is doubtful if it would be attended in many cases with the result anticipated—that is to say, the cheapening of books for home consumption : " while “the almost certain result would be that it would operate as a preventive to republication in the colonies by authors themselves, so that
the colonial reader would be in no better condition than he is now." Operation of acts of 1842 and 18.14.
The leading case is Pitts 1. George (18:96), 2 ch., 866. It involved a musical composition (“La Fileuse," by Raff) first composed, published, and copyrighted in Germany. The plaintisi's, under license from the German copyright proprietor, issued and copyrighted an English reprint. Defendants sought to import for sale the German edition, plaintiff's to enjoin them from doing so.
The question turned on the effect of section 10 of the act of 1844 as affecting section 17 of the act of 1842, which it did not in terms repeal. For the defendants it was contended that the act of 1841, making by implication an exception in favor of original foreign editions and admitting these, was to be construed as a limitation of the more general prohibition of the act of 1842. In the lower court this contention was sustained, the act of 1844 being held to supersele that of 1812; but on appeal this decision was reversed by a majority of two to one, and the importation of the German edition, through the original, was held barred.
The majority opinions were quite lengthy. Considerable extracts are appended.
Opinions in Pitt Pitts v. George: Their especial significance.
(1) They regard the exception in the act of 1844 (in favor of the original edi. tion) as conflicting with the general principles of copyright and the policy of the English law, which they consider the act of 1842 as more nearly embodying, and they refuse to accept the act of 1844, in spite of its specifications, as intended to supersede the act of 1842 or to limit the rights of the British licensee, without a definite expression of this intention.
(2) The act of 1842 in terms prohibited only the importation (sec. 15) of unlawful foreign prints, and (sec. 17) of lawful foreign reprints. Yet the court interprets the prohibition as general.
(3) Briggs sunis up the decision as classing the German edition with the “ unauthorized foreign reprints” (“unauthorized would thus mean unauthorized for Great Britain), “the court deciding that where the copyright in a foreign work had been divided, the words the proprietor of the copyright' in section 17 of the 1842 act, indicated the owner of the English rights."
NOTES.- Lindley, L. J., remarks that the exception (in the act of 1844] of the original edition “is quite new, and the reason for it is not stated." He finds that to infer that the right of complete exclusion given to the British proprietor under the act of 1812 was intended to continue " is most in accordance with legal principles and good sense."
« Briggs op. cit., Pt. IV', sec. 7, pp. 558, 559.
Rigby, L. J., traces the legislation historically.
“The statute of 1709 (8 Anne, c. 19) gave copyright only in Great Britain, and made no distinction between copies imported for sale and other copies imported.” “The distinction between importations for sale and other importations was introduced in 1735 (as I think for the first time) into an act for the protection of engravings; but the act which seems to have afforded the basis for section 17 of the act of 1812 is an act of 1739 (12 Geo. 2. c. 36). This was not a copyright statute at all, but a revenue act, founded on the consideration that the duty on paper imported for printing books exceeded the duty on printed books. The statute was not required for the protection of copyright in books, which was fully effectuated as to importations by the statute of 1709. The prohibition extended to books in which there was no copyright, if only there had been a printing of them within twenty years."
He remarks that neither the act of 1838 nor that of 1842" prevented the importation from foreign countries of books for the private use of the importer." But he notes that the customs act of 1843 (5 and 6 l'ict., c. 47) passed immediately thereafter, “after a recital that great abuse had prevailed with respect to the introduction into this country for private use of works reprinted abroad” absolutely prohibited the importation of these (even for such use).
This was the condition when the act of 1844 was passed. “The reason why in this section (10 of that act) the exception is made of importations from the country of origin is by no means clear; but it is important to observe that the exception is made from a clause absolutely prohibiting importation, and it may have been thought undesirable to go so far as to prohibit importations for private use from the country of origin, where many persons might be expected to purchase the books honestly and fairly for private use."
Under the interpretation contended for by the defendants the proprietor of the British copyright © would have to submit to an unlimited importation of books lawfully printed in any part of Germany itself, the country in which it would be most likely that the book would be printed on a large scale. The very person through whom he derived title might, so far as the copyright law is concerned, import and sell as many of the books as he could find a market for, or set up circulating libraries like Mudie's for the diffusion through Her Majesty's dominions of the very books as to which he had parted with copyright in those dominions. What he could do, any other person could do who got hold of books lawfully printed in Germany. Under conditions of trade favorable to books printed in Germany the copyright in the British dominions under the act would be absolutely worthless, and the beneficial object of the act of 1814 entirely frustrated."
" It is, however, said that by appropriate covenants with the owner of the original copyright the assignee may be protected. But the possibility of actual protection being given by covenants is by no means clear."
Copingere considers the decision in Pitts v. George no doubt correct in principle,” though it may be found to work harshly in practice," i. e., where an English importer, in the habit of ordering from Germany, suddenly finds that he is infringing the rights of an English licensee who has secured the English market by a subsequent concession unknown to him. As to section 15 of the act of 1812, he comments as follows:
“By this section (1 (15)) the printer is made liable for damages only when the printing is for “sale or exportation," and the importer only when copies are imported for “sale or hire.” No remedy is given against any person who prints or imports for gratuitous distribution, or who gratuitously distributes copies printed or imported without authority. But in Novello v. Ludlow b it was held that an action for damages would lie under the statute for the gratutious distribution among the members of a singing society of lithographic copies of a musical composition, for where a statutory right exists and the statutory remedies are either not complete or inadequate for the protection of the right conferred, the common law remedies may be made available.”
The act of 1847 (colonial copyright act) enabled the sovereign to suspend the prohibition of importation as against colonial reprints.
a Part V., ch. 1, p. 461. (1852), 12 C. B., 177.
* See also Rooney v. Kelly (1861), 14 Ir. L. R. (X. S.), 158; Warne 1. Seebohm (1888), 39 Ch. D., 73; Cooper v. Whittingham (1880), 15 Ch. D., 501.
An act of 1875 prohibits, without assent, the importation of Canadian reprints.
The act of 1876 (customs consolidation act), under the caption " Goods prohibited to be imported," provided as follows:
Books wherein the copyright shall be first subsisting, first composed, or written or printed, in the United Kingdom, and printed or reprinted in any other country, as to which the proprietor of such copyright or his agent shall have given to the commissioners of customs a notice in writing, duly declared, that such copyright subsists, such notice also stating when such copyright will expire."
[Extends to all British possessions, subject to possible modification under the reprints act of 1847, supra.]
XOTE.-(1) The above prohibition is in terms general, making no exception in favor of copies imported only for private use. (2) Its operation as to foreign reprints is evidenced by the Tauchnitz editions (reprints of English books), which can not be imported into Great Britain even by an individual in his language. Desideratum : A particular (ase in which it has been applied against such an importation (for private use) of a copy of the original edition of a book originating abroad.
GENERAL CONCLUSIONS AS TO THE BRITISH LAW AND PRACTICE.
1. The subdivision of copyright territory with a view to exclusive control is recognized as a legitimate practice.
2. Exclusion from British territory of foreign reprints thus resulting is upheld and enforced at the instance of the British copyright proprietor.
3. Such exclusion extends to the original foreign edition in favor of the British licensee and his reprint, where the importation is attempted for purpose of sale or hire.
4. Whether it would so extend against an importation merely for private use. quaere. The issue not raised in Pitts 1. George. But the court implies obiter that if there is a distinetion between the two cases it rests not on principle but merely on experiency, and points out that in earlier legislation it was specifically ignored.
The practice under the customs act (of 1876) is alleged to ignore it.
5. Canada by law excludes the original English edition in favor of the Canadian licensee reprinting, where the importation is attempted for commercial purposes. It provides an exception in favor of libraries, etc., and it permits au individual, for his private use, to secure one copy, but only through the Canadian licensee, thus insuring to the latter a profit as importer to offset that which he loses as publisher.
The Continent. I. Domestic statutes. Those specific on the question of importation appear to be few.
Subdivision of the copyright territory with a view to exclusive control appears to be generally accepted as an incident of the right, e. g.
Germany.-The act of June 1!), 1.901, section 8, provides as follows: "The right may be assigned to any other person with or without restriction. Such assignment can also take place with limitation to a specific locality.”
Such subdivision, described in French as that of ' edition partageé," in German as Getheiltes Verlagsrecht," is discussed in the leading continental treatises ony copyright law, e. g., Kohler, Lyon-Caen, Janlet, Darras, Pouillet.
As to its effects, as regards importations, to what extent the foreign edition may be excludel and whether the exclusion between original edition and re
a The British legislation prohibiting importation of foreign editious for sale appears to date as early as 1533 (2.5 Henry VIII, ch. 15), intended for the protection of British printers and binders. The prohibition was included in a statute of June 12, 1643 (ch. 12), to redress “Disorders in printing” having in view the interest of the British copyright proprietor. This forbade any person to “ import any such book [i. e., any edition printed or reprinted without license of the company of stationers, or the copyright proprietor] or books, or part of book or books, formerly printed here from beyond the seas," and was general in terms.
print may be mutual, the law not being fully.explicit, the commentators are not entirely agreed.
Russia.-Of al domestic statutes that of Russia (1886) is most nearly specific. It classes (article 15b) as piratical (contrefaçons) a foreign edition, even if a mere translation, imported or sold in Russia without the assent of the lawful (Russian) publisher. In article 50 it specifies as contraband and barred the foreign authorized edition of a musical composition whose author has granted to another publisher the exclusive rights for Russia.
Peru.—The act of November 3, 1819 (article 7) is general in its prohibition of the introduction or sale within the Republic of “ editions made abroad " of works of which the copyright (for Peru) belongs to another.
Franer'.—The customis act of May 6, 1941, appears to provide against the importation of foreign reprints without the assent of the French copyright proprietor."
A decree of March 18-30, 1852, relative to literary and artistic works published abroad provides (1) that contrefaçon" of such should constitute a criminal offense and (2) likewise the exportation of " des ouvrages contref:uisants," an offense of the same nature as the importation into France of works which after being printed in France were contrefaits" abroad.
The literal equivalent of “ contrefaçon " would seem to be “piracy." The decree of February 5, 1810 [Pouillet, p. 810), gives it a more inclusive meaning: that of any work printed without the consent and to the prejudice of the author or his assigns. And upon this definition Pouillet (P1). 577 et seq. p. 778) Contends that the French penal code [sec, 120] in connection with the decree of 1852 prohibits the importation of foreign editions authorized only for foreign countries, and probably also the reimportation of French editions exported with intent only of sale abroad.
If the French law constitutes the above a penal offense (délit) it would certainly intend to bar the importation as a matter of civil privilege.
II. Treaties: It is in these (between particular States) that the incidents of an édition partagée have in general been provided for. The usual provision is as follows (e. g. Belgium-Portugal, October 11, 1866, article 6; France-Austria, December 11, 1866; Italy-Spain, June 23, 1880):
“When the author of a work of which the property rights are guaranteed by the present treaty shall have assigned his right of publication or of reproduction to a publisher in the territory of either of the bigh contracting parties with the reservation that the copies or editions of this work thus published or reproduced can not be sold in the other country, these copies or editions shall be considered and treated, respectively, in that country as illicit reproductions."
As remarked by the commentators, the peril of the competition would be slight except where the language is identical. In the case of music it is the same for all countries. This case received therefore special attention in important treaties between Germany and France, April 199, 1883; Germany and Belgium, December 12, 1883; Germany and Italy, June 20, 1SSI; France and Belgium, Portugall, Switzerland, etc.
The provisions, almost identical, are as follows (e. g., Germany-Belgium, article 11): " When the author of a musical or dramatico-musical work shall have assigned his right of publication to a publisher for the territory of one of the two countries to the exclusion of the other, the copies or editions of this work this published can not be sold in the latter country, and the introduction of these copies or editions in that country shall be considered as the putting into circulation of infringing copies.
• The works to which this provision applies shall bear, upon their title page and cover, the words, “Eolition interdite en Allemagne (en Belgiqne).""
Another provision common in such treaties stipulates for a full control by each party of its own territory, notwithstanding the general recognition by each of the copyright, as such, obtained in the other. It is as follow's (e. g., Belgium-Netherlands, June 30, 18.58, article 10): Nothing in this treaty shall be construed as interfering with the right of one or the other of the two high contracting parties to prohibit the importation into its own territory of books which, according to its internal laws or to the stipulations of treaties
a “Vulle edition ou partie d'édition imprimée en France ne pourrit être réimportée qu'en vertu d'une autorisation expresse du ministre de l'intérieur, accordée sur la demande de l'éditeur qui, pour l'obtenir devra justifier du con. sentement donné à la réimpression par les ayants droit.”
with other powers, are or may be declared to be infringements or violations of copyright."
Such a provision is included in some seventeen other treaties between Farious powers, from 1855 to 1893 (including France-Austria, Germany-Austria, France Germany, Austria-Great Britain, etc.). It leaves to each country to legislate for its own market in accordance with its own policy. This appears to be safe guarded also in the convention of Berne (1886), article 13: “ It is understood that the provisions of the present convention can not in any way derogate from the right which belongs to the government of each of the countries of the Union to permit, to supervise, and to prohibit, by legislative measures or police regulations, the circulation, representation, and exhibition of every work or production in respect of which the competent authority may find it necessary to exercise that right.”
The considerations of policy which may justly induce a government to exclude a foreign edition imported to the prejudice of the domestic, Pouillet (pp. 778–779} likens to those operative in the case of patented inventions. A license for manufacture and sale within a foreign territory gives no right of importation into France. It is a purely restricted privilege and is not to be exercised to the prejudice either of the domestic inventor or of the domestic manufacturer. Each country has a right and a duty to protect both of these, and some
mes (as in the case of munitions of war) this duty may become one of selfpreservation."
In short a work authorized (“licite”) for one territory is by no means necessarily so for all.
B. THE COMMENTATORS.
The leading continental ones of recent date who give space to the question appear to be:
1984. Lyon-Caen (in Rev. de droit Int. XVI:457, discussing the Franco-Germany Treaty of 1883),
1. Subdivision of copyright territory with a view to commercial monopoly of the respective regions is accepted as a proper incident of the right.
2. It is quite generally upheld by each government in behalf of its citizens who are authors, publishers, and manufacturers, as against the competing foreign product.
3. No distinction is in terms drawn by statute between a foreign reprint and an original foreign edition competing for the domestic market with the licensed domestic reprint.
4. The particular phraseology of statute or treaty which might seem to imply such a distinction is not treated by the commentators as doing so, no one of them pointing out the distinction or discussing it.
The right to exclude the foreign edition being exercised by a government for the benefit of its authors, publishers, and manufacturers, how far is it customarily relaxed in favor of its readers by permitting
(1) The importation of (at least single) copies for private use or for libraries or institutions? Or
(2) Such importation of at least the original edition when the domestic is merely a reprint?
Upon (2): The statutes as construed by the commentators afford no conclusive inference.
As to (1): The law of Belgium defines as a penal offense (délit) only the importation of the illicit edition for a commercial purpose (** dans un but commercial") not one for private use (see Janlet).
The law of Germany of June 11, 1870, made the same limitation. The present statutes omit mention of it. Kohler, however, insists that importation of foreign editions (he does not limit them to original editions) is a professional
a Pouillet. Brevets d'invention et de la contrefaçon 1899, p. 674 (sec. 714 bis).