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and (in institutions) a literary necessity, and that though “ the law is silent upon this point
[the privilege) follows of itself from the reasonable objects of the law."
He believes that the "omission was an erroneous conception of copyright and a resulting disregard of the difficulties and interrelations arising in the present connection” . “The American law," he adds, “is the only one which makes detailed provisions for this case.” (Rev. Stats., sec. 4956.)
He contends, therefore, that “single copies” of any foreign edition, “ sought out and furnished for libraries or collectors, from motives purely literary or relating to the history of culture ” may be imported notwithstanding the general prohibition.
NOTE.—The work of Kohler is so recent that criticism of his views (if erroneous) by other commentators has not yet appeared unless in reviews which have not come to our attention.
[It is, of course, contended by the publishers that where the work is of a character to interest chiefly the professions or libraries, free importation merely by the professions and by institutions, would cut out the domestic market for the domestic edition precisely as if the importation were by dealers “for sale " to these.]
C. THE PRACTICE, AS EVIDENCED BY CURRENT OPINION.
Personal inquiry (in May and June of last year) at the International Burea u at Berne, at the copyright bureau (" Cercle au Librairie "), in Paris, and at the office of the Society of Authors in London. Both the subdivision of territory and the right of mutual exclusion seemed to be taken as a matter of course and common practice. As to any exception in favor (1) of copies of an original foreign edition or (2) of copies imported merely for private use or by institutions, the officials disclaimed precise knowledge. The question appeared to them a novelty.
II. PartiAL LIST OF AUTHORITIES CONSULTED.
Statutes examined, also treaties (to 1896).
British.-1485, 1 Rich. III, c. 9, s. 12; 1534, 25 Hen. VIII, c. 15 (repealing above) ; 1623, 1625, 21 Jac. I, c. 3; 1643, (in Scobell Acts and Ordinances, p. 44); 1662, 1709, 8 Anne, c. 19: 1735, 8 Geo. II, c. 13; 1739, 12 Geo., c. 36; 1838, 1 and 2 Vict., c. 59; 1842, 5 and 6 Vict., c. 45; 1812, 5 and 6 Vict., c. 47 (rere. nue) ; 1844, 7 and 8 Vict., c. 12 (also later acts to date).
France.—In particular decree of March 28-30, 18.52 (in Pouillet, p. 849), etc.
Germany.-“ Law of copyright in Germany, London,” 1902 (being a translation of the German acts of June 19, 1901).
Austria.-Law of copyright in Austria, London, 1902, being a translation of the Austrian açt and ministerial order of 1895 and convention with Great Britain (1903).
The Convention of Berne.-1886, 1896.
In generul.-In Lyon-Caen all statutes and treaties in force in 1889 and down to 1896.
Other authorities consulted :
Pouillet, Eugène, Traité des brevets d'invention et de la contrefaçon, Paris, 1899.
Janlet, Victor, De la protection des oeuvres de la pensée, Brux., 1887.
Lyon-Caen et Delalain., Lois., sur la propriété littéraire, etc., vol. 20, Paris, 1889.
Lyon-('aen et Delalain., Lois., sur la propriété littéraire, etc., supplement, 1890–96.
Wautermans, l'aul, Le droit des auteurs en Belgique, Brux., 1894.
Darras, Alcide, Du droit des auteurs et des artistes dans les rapports internationaux, P., 1887.
Pataille, J. and Huguet, Aug. code internationale de la propriété industrielle artistique et littéraire, P., 1865.
Lyon-Caen La Convention (1883) entre la France et l'Allemagne (in Rev. de droit int., etc., 1884, v. XVI, pp. 457-460).
Kohler, Josef, Urheberrecht an Schriftwerken u. verlagsrecht 2te lief. bogen 11-22, Stutt., 1906.
Miscellaneous.—The report of the English commission of 1876.
THE CASE OF PITT PITTS 1, GEORGE & co., 2 ch., 866 (1896).
[Ertracts from decision on appeal. )
The plaintiff was owner of the British international copyright of a book first published in Germany. The defendant imported and sold in Great Britain copies printed in Germany by the owner of the German copyright:
Held, by Lindley and Rigby L. JJ. (dissentiente, Lopes L. J.), reversing the decision of Kekewich J., that the plaintiff was entitled to restrain this importation and sale, for that section 10 of the international copyright act, which, as regards any book in which there is British international copyright, prohibits the importation into Great Britain, without the consent of the proprietor of such copyright, of copies printed in any foreign country except that in which the book was first published, does not form a complete code as to the importation of copies; and that section 3, which provides that the enactments in the copyright act shall apply to books in which there is British international copyright in the same way as if such books had been first published here, made sections 15 and 17 of the copyright act applicable to the book in question, and that as under those sections the owner of the copyright could, if the book had been first published in Great Britain, have restrained the importation of these copies, the owner of the British international copyright could do so.
[Pages 868-869.) F. Ries, of Dresden, and afterwards of Berlin, who was entitled to the copyright in a musical composition by Jaochim Raff, called Fileuse." first published in Leipzig, sold to Patey & Willis, of London, “all my copyright and interest, present and future, vested and contingent or otherwise, in England and colonies, together with the right of performing the same, of and in ” certain pianoforte pieces, which included La Fileuse. No formal assignment was made; but a receipt was given by which Ries undertook to execute such further assurance as might be required. The work was entered and registered at Stationers' Hall as copyright in the name of Patey & Willis. The plaintiff had since taken over the business of Patey & Willis, and continued it under the same name.
The defendant, who was carrying on business under the style of Edward George & Company, sold in England divers copies of La Fileuse, which had been printed in Leipzig by the successors of Ries. The plaintiff brought this action for an injunction and damages.
Kekewich, J., held that the pieces of music, being lawfully printed in the domicile of origin, were not within the prohibitive part of section 10 of the international copyright act, 1844, nor within the prohibition of secton 15 of the copyright act, 1842. His Lordship, therefore (the motion for an injunction being by consent treated as the trial), dismissed the action with costs. The plaintiff appealed. The appeal was heard on July 24, 25, 1896.
[Page 872.] Neither of these sections prohibits importation for private use, but only importation for sale or hire; neither of them, moreover, is framed with a view to protect copyright in books first published in foreign countries.
[Page 873.) Section 10 enacts: [His lordship read the section.). It will be observed that this section expressly excepts from its operation the importation of copies made in the country in which the copyright book was first published. This exception is quite new, and the reason for it is not stated.
[Page 876.) What, then, is the true inference from the express exception in section 10? Is it to be inferred that the foreigner entitled to copyright in this country is liable to have that copyright infringed by any importer of books printed in his own country, or is the inference to be that as regards such books he is entitled to the same protection as a British author would have under the act of 1812? The latter inference is most in accordance with legal principles and good sense, and is the only inference which is consistent with the preamble and section 3 of the act of 1844. If the defendant's contention were correct, it would follow that a foreign author could assign his English copyright and import and sell copies of his work here in competition with his own assignee umless prevented from so doing by express agreement. Such a state of our law would not be very creditable, and I am glad to find that the court is not driven to hold the law to be so unsatisfactory, nor to hold that owing to a blunder in drafting the legislature has conspicuously failed to attain its declared and manifest object.
One other point was urged which requires notice. The defendant is the purchaser of the books he has imported, and it is contended that he has a right to dispose of those books as he likes without any interference from the owner of the foreign copyright or from the plaintiff, who claims under him. The right, Jiowever, of the defendant to use in this country the books which he bought abroad depends on the law of this country and not on the law of the place of sale. The copyright in this country confers upon the plaintiff rights here which no contract of sale abroad by other persons can deprive him of.
[Pages 878-879.) The statute of 1709 (8 Anne, c. 19) have copyright only in Great Britain, and made no distinction between copies imported for sale and other copies imported. Section 7 of the act, however, provided that nothing in the act should prevent the importation of books in any foreign language printed beyond the seas. 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 copyright in engravings (8 Geo. II, c. 13); but the act which seems to have afforded the basis for section 17 of the act of 1842 is an act of 17:39 (12 Geo. II, 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. The printing was in that act the very thing aimed at, whilst in copyright acts the protection of the owner of the copyright is the important point.
Page 880.) Comparing, therefore, the act of 1838 with that of 1812, the firstnamed act authorized at least the same amount of protection from imported books to be given to copyright under that act as was given to copyright for books first published in the United Kingdom by the later act, except that importation for hire was not dealt with by it. Seither act prevented the importation from foreign countries of books for the private use of the importer. It is, however, material to note that by an act to amend the laurs relating to the customs (5 and 6 Viet., c. 47), which came into operation a few days after the copyright act, and must have been before Parliament whilst the last-mentioned act was under consideration of the international copyright act of 1844, with the knowledge that respect to the introduction into this country for private use of works reprinted abroad, to the great injury of the authors thereof and of others, it was by section 24 enacted that from and after April 1, 1843, all books wherein the copyright should be subsisting first composed or written or printed in the Cuited Kingdom, and printed or reprinted in any other country, should be and the same were thereby absolutely prohibited to be imported into the United Kingdom. It seems, therefore, that there was no substantial departure as to importation from the policy of the act of 1709. We have, then, to approach the consideration of the international copyright act of 184, with the knowledge that provision was made against importation for sale or hire in the copyright act of 1812, and for absolute prohibition of importation even for private use in the later act of the same session, whilst the international copyright act of 1838 was clearly imperfect in both respects.
The reason why in this section (10) 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.
I proceed to deal with the suggested interpretation of the act of 1814, which would make section 10 a complete code as to importations and exclude altogether the operation of sections 15 and 17 of the act of 1812. If section 10 contains the whole law on the subject, it is obvious that the proprietor of copyright under the later act (supposing him for the moment to be a different person from the owner of the copyright in the country where the book was first published) would be in so much worse a position than the owner of copyright in a book first published in the United Kingdom that the two rights would be essentially different. Take, for instance, the case before us of a book first published in Germany. The proprietor of copyright in the British dominions would, indeed, have as to all countries but Germany the right of preventing the importation for private use in more sweeping terms than those contained in section 24 of the acts 5 and 6 Victoria, chapter 47. But in exchange for this comparatively unimportant advantage he 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 throughout 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 1844 entirely frustrated.
This consideration affords, in my judgment, a very strong presumption against the suggested construction which would make section 10 of the act of 1844 an entire code with reference to importations from abroad. It is, however, said that by appropriate covenants with the owner of the original copyright the assignee may be protected. The suggestion, of course, involves the assumption that the copyright law itself has altogether failed to afford adequate protection. But the possibility of actual protection being given by covenants is by no means clear.
III. EXTRACTS FROM BRITISH STATUTES.
A. D. 1483. 1 Richard III, chapter 9, Section XII. In what port Italian merchants may
sell merchandise. Several restraints of aliens.
Provided always, That this act, or any part thereof, or any other act made or to be made in this said Parliament, shall not extend or be in prejudice, disturbance, damage, or impediment to any artificer, or merchant stranger, of what nation or country he be or shall be of, for bringing into this realm, or selling by retail or otherwise, any books written or printed, or for inhabiting within this said realm for the same intent, or any scrivener, alluminor, reader, or printer of such books, which he hath or shall have to sell by way of merchandise, or for their dwelling within this said realm for the exercise of the said occupations, this act or any part thereof notwithstanding.-The Statutes at Large
vol. 2, London, 1763. A. D. 1533. 25 Henry VIII, chapter 15. An act for printers and binders of books.
" Whereas by the provision of a statute made in the first year of the reign of King Richard the Third, it was provided in the same act that all strangers repairing into this realm, might lawfully bring into the said realm printed and written books to sell at their liberty and pleasure; (2) by force of which provision there hath come to this realm sithen the making of the same, a marvelous number of printed books, and daily doth; and the cause of the making of the same provision seemeth to be, for that there were but few books, and few printers within this realm at that time, which could well exercise and occupy the said science and craft of printing; nevertheless, sithen the making of the said provision, many of this realm, being the King's natural subjects, have given them so diligently to learn and exercise the said craft of printing, that at this day there be within this realm a great number cunning and expert in the suid science or craft of printing, as able to exercise the suid craft in all points, as any stranger in any other realm or country; (33) And furthermore, where there be a great number of the King's subjects within this realm, which live by the craft and mystery of binding of books, and that there be a great multitude well expert in the same, yet all this notwithstanding, there are divers persons that bring from beyond the sea great plenty of printed books, not only in the Latin tongue, but also in our maternal Frolish tongue, sore bound in boards, some in leather, and some in parchment, and then sell by retail, whereby many of the King's subjects, being binders of books, and having no other faculty wherewith to get their living, be destitute of work, and like to be undone, except some reformation herein be had ;"
Be it therefore enacted by the King our sovereign lord, the lords spiritual and temporal, and the Commons, in this present Parliament assembled, and by authority of the same, That the said proviso, made the first year of the said King Richard the Third, from the feast of the Nativity of our Lord God next coming, shall be void and of none effect.
II. And further be it enacted by the authority aforesaid, That no person or persons, resident or inhabitant within this realm, after the said feast of Christmas next coming, shall buy to sell again, any printed books brought from any parts out of the King's obeysance, ready bound in boards, leather, or parchment, upon pain to lose and forfeit for every book bound out of the said King's obeysance, and brought into this realm, and bought by any person or persons within the same to sell again contrary to this act, vi. s. viii d.
III. And be it further enacted by the authority aforesaid, That no person or persons inhabitant or resident within this realm, after the said feast of Christmas, shall buy within this realm, of any stranger born out of the King's obedience, other than of denizens, any manner of printed books brought from any the parties beyond the sea, except only by engross, and not by retail, upon pain of forfeiture of vi s. viii d. for every book so bought by retail, contrary to the form and effect of the statute; (2) the said forfeitures to be always levied of the buyers of any such books contrary to this act; the one-half of all the said forfeitures to be to the use of our sovereign lord the King; and the other moiety to be the party that will seize or sue for the same in any of the King's courts, be it by bill, plaint, or information, wherein the defendant shall not be admitted to wage his law, uor no protection ne essoin shall be unto him allowed.
IV. Provided always, and be it enacted by the authority aforesaid, That if any of the said printers or sellers of printed books, inhabited within this realm, at any time hereafter happen in such wise to enhance or increase the prices of any such printed books, in sale or binding, at too high and unreasonable prices, in such wise as complaint be made thereof unto the King's hig! or unto the lord chancellor, lord treasurer, or any of the chief justices of the one bench or of the other; that then the same lord chancellor, lord treasurer, and two chief justices, or two of any of them, shall have power and authority to inquire thereof, as well by the oaths of twelve honest and discreet persons, as otherwise by due examination by their directions. (2) And after the same enhancing and increasing of the said prices of the said books and binding shall be so found by the said twelve men, or otherwise by examination of the said lord chancellor, lord treasurer, and justice, or two of them; that then the same lord chancellor, lord treasurer, and justices, or two of them at the least, from time to time, shall have power and authority to reform and redress such enhancing of the prices of printed books from time to time by their discretions, and to limit prices as well of the books as for the binding of them; (3) and over that, the offender or offenders thereof, being convicted by the examination of the same lord chancellor, lord treasurer, and two justices, or two of them, or otherwise, shall lose and forfeit for every book by them sold, whereof the price shall be enhanced for the book or binding thereof, three shillings four pence; the one half thereof shall be to the King's highness, and the other half to the parties grieved that will complain upon the same in muner and form before rehearsed.- The Statutes at Large
volume 2, London, 1763. 1643. June 12, 1643, chapter 12, page 43. Disorders in printing redressed.
And that no person or persous shall hereafter print or cause to be reprinted any book or books, or part of book or books, lieretofore allowed of and granted to the said company of stationers for their relief and maintenance of their poor, without the license or consent of the master, wardens, and assistants of the said company; nor any book or books lawfully licensed and entered in the register of the said company for any particular member thereof without the license and consent of the owner or owners thereof. Nor yet import any such book or books, er part of book or books formerly printed here, from beyond the seas, upon pain of forfeiting the same to the owner or owners of the copies of the said books, and such further punishment as shall be thought fit.-Scobell's Collection. Great Britain. Alls of larliament, 1640-1656. •London, 1658.