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copies or editions of such a work thus published can not be sold in the latter country, and the importation of these copies or editions shall be considered and treated there as if an ingfringement had been put into circulation,
The works to which this provision applies must bear on their title-pages and covers the words “ Edition prohibited in Germany (in France)."
Moreover, these works may be freely admitted into either of the two countries in transit to a third country.
The provisions of the present article are not applicable to works other than musical compositions and dramatico-musical compositions.
Article 14 : The provisions of the present convention are not prejudicial in any way to the right which belongs to each of the two high contracting parties to permit, to watch out for, or to prohibit by legal measures or by police regulations the circulation, the performance, or the exhibition of any work or reproduction, concerning which the proper authorities would have to exercise this right.
The present convention does not restrict the right of either of the two high contracting parties to prohibit the importation into its own country of books, which, according to its own laws or by agreements entered into with other powers, are or may be declared to be infringements.
The provisions of paragraphs 2, 3, and 4 are new and have as their object to bring about certain adjustments.
This particular situation, in which the right to reproduce should not be carried on, except in a certain, territory (Getheiltes Verlagsrecht), was the subject of discussion in the Reichstag in 1870. Parliament not only rejected the provision by which the importation of copies into a country where they are prohibited was an infringement, but it also passed a resolution stating that at the time of the conclusion or renewal of such literary agreements the right to share the publication of a work should be suppressed. It was at the instance of the interested parties that the provision of the convention of 1862 was introduced into the convention of 1838, with some conditions and modifications.
Lyon-Caen (Ch.). The literary and artistic treaty of April 19, 1883, con
cluded between France and Germany. In “ Revue de droit international et de legislation comparée, Bruxelles et Leipzig." Vol. XVI, 1881, pp. 157-460.
[Divided right of publication (Getheiltes Verlagsrecht.) ]
Article 11 concerns what is called the divided right of publication (Getheiltes Verlagsrecht) and determines, in a sense favorable to the treaties concluded by authors relative to the publication of their works, a very difficult question.
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 so published shall not be sold in the latter country, and the importation of these copies or editions shall be considered and treated there as the putting in circulation of a pirated work.
The works to which this provision applies must hear upon the title and cover the words, “ Publications prohibited in Germany (in France)."
Nevertheless, those works shall be freely admitted in transit through the two countries for destination in a third country.
The provisions of this article shall not be applicable to works other than musical or dramatico-musical works.
It happens than an author, instead of assigning to a publisher the right to publish his work without limitation of place, assigns to a publisher the right to publish only in a special country, prohibiting him from publishing it in other countries; the author thus reserves the right also to make, if he sees fit, special agreements of assignment for these other countries. These treaties are specially frequent for musical works; they are hy reason of the diversity of the languages, more rare for literary works and almost never occur for works of art.
It is certain that, when a treaty of this sort between an author and a publisher is entered into by Germany, the publisher who brings out an edition in France commits the offense of piracy. But generally, when a treaty of assignment of this sort is entered into hy one country, the object of the parties is not only that the publisher shall not bring out the work in another country, but also that he can not there sell copies of the edition published in the country for which he has acquired his right. Otherwise, the author could not maintain the sole liberty to assign the right to publish his work in the other countries. But if it is contrary, in this respect, to the treaties, should it be considered as a punishable act, similar to piracy, to put into circulation copies outside of the country in which they have been published? In principle, the negative must be admitted. Laws can only regard the placing in circulation of infringing copies of a work. In this case it is not a question of infringing copies; they were reproduced by a person who had the right to publish them. But the treaty modifies this precise rule, if not for all literary and artistic works, at least for musical works. It declares that the importation, into another country, of copies published in the country where the publisher has the right of publication, is punishable as the importation of pirated copies would be. However, article 11 subordinates the application of the provision to the notice given at the time upon the title and upon the cover by the words: Prohibited in France (or in Germany).
For the rest, it appears unquestionable that the publisher who has acquired for a single country the right to publish a work may have it printed in another country, provided that he only distributes and places the copies on sale upon the territory of the State in which he enjoys the exclusive right.
Acts considered as infringement-Importation, cxportation, etc.
According to the French law (penal code, art. 426) the importation of pirated works is punishable, even if it is not done with the object of gain. However, bad faith on the part of the importer is required for him to incur the penalty pronounced by the law and be required to idemnify the author.
According to the German law (law of June 11, 1870, art. 25), the importer must act both in bad faith and with the object of gain. Confiscation alone is allowed in the absence of bad faith; but if the object of gain is lacking, the pirated copies can not even be confiscated. Pouillet, Eugène. De la propriété litéraire et artistique. Chapter I. Sec. II,
Art. III, p. 575.
604. Importation into France.--Copying in a foreign country a work published in France does not constitute infringement, at least as regards punishability under the French law. Only the law of the country where the copying is done can protect the author. [P. 577, same section and article.)
Let us make an important observation here. The law prohibits and punishes the importation into France of works which have been infringed in foreign countries—that is to say, which have been published without the consent of the author. But what should be decided in the case of a work which has been published in a foreign country with the consent of the author, and which consequently, is not an infringement, whose importation into France would nevertheless be in contempt of the rights of the author? The case may, in fact, be presented in this way: The author cedes to a foreigner the right to publish and to sell his work; but he reserves to himself the right of publication in France, or, what amounts to the same thing, he celles to a French publisher the exclusive right of publication in France. The foreign publisher does not content himself with the domain which has been assigned to him; he imports into France copies of the work which he lawfully publishes and distributes in his own country. Does this importation fall under the head of article 426? It certainly seems so to us. If article 420 covers the case which most frequently presents itself, that of the importation into France of a work published in a foreign country in violation of the rights of the author, it does not exclude importation in every other case. Infringement is understood to be any act which is a blow at the exclusive right of the author, at his monopoly. In prohibiting importation, the legislator has sought to defend and protect the exclusive right of the author. Now, a blow at this exclusive right is distinct and most dangerous when the work whose publication in a foreign country has been authorized only on condition that it does not cross the French border, comes into and is distributed in France. The importation is illegal, having taken place against the will of the author and to the injury of his rights.
a See Trib. civ. Bruxelles, June 18, 1890, Breitkopf, Gaz. trib., 12 juillet. See Infra, no. 852.
606. Importation of an original French work. What should we think of the following? A publisher sends to a foreign country a certain number of copies of a work of which he is the proprietor with this condition, that the purchaser thereof may not reexport them to France; if such copies return to French territory and are there seized by the publisher, could this act be considered as an act of importation, constituting a misdemeanor similar to that of infringement? This question comes back to the point of determining whether the violation of the conditions should be considered to be the same as infringement. We have examined it above and we have said that to our mind the question does not allow of an absolute solution ; the solution depends, on the contrary, on circumstances and on the nature of the conditions imposed by the contract.
What makes us doubt that the importation can here constitute a misde meanor is that the copies imported on French soil have but reentered after having had birth there, and that in the beginning they were, in France, an authorized reproduction. The agreement, in prohibiting their reentry on French soil-could it abolish this original character of authorized reproduction? We see the whole difference which exists between this kind and that which we examined above. A decision of the Tribunal of the Seine seems, however, to have considered the act as constituting the offense of importation, although it dismissed the prisoner from the complaint (fins de la plainte) by a motive drawn from his good faith. It will be read with interest.c
[Pp. 778–779, Chap. I.)
852. Quid of importation.—The decree of 1852, in saying that exportation and forwarding (expedition) are an offense of the same kind as the importation into French territory of works which, after having been printed in France, have been infringed in a foreign country, says by that itself that importation is punishable by the terms of article 426 of the penal code. That causes no one any doubt. But must we take the terms of this article literally, and not consider importation as punishable except when the work imported constitutes an infringement in a foreign country? If the work is not infringed in a foreign country, if it is lawful, can it by that fact alone legally cross the frontier, without having anything to fear from the French law? We can not think it so. Importation into France is illegal when the work is imported without the authorization of him who is, in France, the proprietor of the copyright. The work is really an infringement, because it acts against the right of the author in France, because it violates the monopoly which is recognized for him by the French law. Infringement in a foreign country means done abroad contrary to the author's rights as recognized in France. The French law can only take into consideration violations against itself. If the contrary were admitted, it would follow that when a work was produced abroad, in a country where there was no protection for literary or artistic property, the work being lawfully produced in that country could not be considered there as an infringement, and, consequently, could be freely introduced into France without its being possible for the author or his assigns to oppose such importation. Is such a thing possible? We have had to consider the same question regarding the law on patents, which contains a similar provision, couched in the same terms, and in conformity with legal precedence we have determined it in the manner we suggest here.d
It has been decided, however, on the other hand, that the decree of March 25, 1852, which was retroactive, and which admitted of a concession for the benefit of foreigners and the abandonment of a right, should be construed in the strictest mamer; it does not state, in a general way, that authors shall enjoy in France, for their works published abroad, the same privileges as for those published in France. It confines itself to stating that the infringement in France of works printed abroad, as well as the importation of foreign infringement of these works, constitute offenses punishable by the same penalties as if it were a question of works printed in France. It follows from this that the importation into France of copies of a work lawfully printed abroad
a See supra, no. 499.
does not constitute a misdemeanor, especially when in Italy a work has fallen into the public domain the copies for which the rights reserved to the heirs have expired according to the Italian law are lawful in Italy, and from that time on may be freely introduced into France without being liable to be taxed as infringements. Poullet, Eugène. Theoretical and practical treatise on patents and their in
fringement. Paris, 1899. Page 674.
714 bis. Quid if the objects imported proceed from the assignee of the foreign patent? Here is a case: An inventor has taken out a patent abroad and in France; and he has assigned his patents. Now, some persons having bought abroad, from the assignee of the patentee, objects similar to these patented, imports them into France. The assignee of the French patent complains. Is he within his rights? Can he consider the objects thus imported as constituting the offense of importation within the meaning of article 41? Has not the purchaser, the importer of these objects, the right to reply that, having bought from the assignee of the patentee abroad, he has the right to dispose of the objects, the manufacture of which is legal, as he sees fit? It seems evident to us that the offense of importation is committed. If the purchase of these objects is legal from the point of view of the foreign patent their importation is illegal with regard to the French law. What constitutes infringement in France is the fact of going contrary to the privative right established by the French law. Of what consequence is it, then, that the object is lawful abroad, that it has been manufactured and sold in conformity with the foreign law? In what way does that touch the question of knowing whether this object has paid its tribute to the French law? French law does not have to consider the foreign patent; it applies only to French territory; anything outside of that does not concern it. It should be remarked, however, that the patentee himself can not authorize this importation, since, under the terms of article 32, it would entail the forfeiture of his right.
Considered in this light: First, that the patentee and his French assignee have the right to oppose the importation into France of all similar objects manufactured in foreign countries, even when they emanate from the foreign assignees and would have, therefore, paid the fee (acquitté la redevance) stipulated by the patentee for the exploitation of his foreign patent (Paris, Jan. 11, 1876, Reilly, Pataille, 76, 85). Second, that the law of July 5, 1844, did not intend to favor inventors only, but desired at the same time to protect national labor by guaranteeing to it, during the whole duration of the patent, the exclusive manufacture of the patented article. It follows that in prohibiting the 489. In the case of a divided publication the copies lawfully made in the name of one of the assignees take on an illegal character when they enter a country where other persons enjoy the exclusive right. (See No. 510.) MM. Grus and Gerard, assignees of all rights in France, had then the power to close our market to the Italian editions. The tribunal of the Seine has not thought so; it rests upon the following reason: “By reason of the payment of royalty, the authors' rights upon these scores have become completely extinct.” We do not understand part of that consideration; for what the judges ought to consider is not to know if, upon such or such single copy, the author's rights are extinct, but if the rights taken by themselves still exist. Now, in this particular case, that was incontestable since the payment of the royalty could have been exacted. (See Le Droit for April 27, 1884; the pleadings of MM. Pouillet and Barboux and the address of Deputy Bard are in relation to this; adde, le Ménestral, 85, 334).
importation into French territory of any infringing object, article 41 of this law . intended to impress the character of infringing object upon every product of foreign manufacture similar to the work patented in France, even when the product had been manufactured abroad by the assigns of the inventor. It matters little that the article may have been lawfully manufactured abroad; it constitutes no less an infringing object from the point of view of French law, the laws which regulate patents for inventions applying only to the territory of each country (Douai, May 15, 1885, Dupont Buisine, Pataille, S6, 304). Third, that, nevertheless, this importation becomes lawful when it is a question of arms and munitions of war imported by the Government or for its use, in the interest of national defense. The law of patriotism and of necessity, superior to all, which obliges the Government to defend its territory, could not be fulfilled as it should be if the French law armed all French patentees, neutral or enemy, with the right to seize and confiscate arms and ammunition intended for the defense of the country (Paris, Jan. 11, 1876, Chollet, Pataille, 76, 89). Darras, Alcide. Des Droits Intellectuels, vol. I. Du droit des auteurs et des
artistes dans les rapports internationaux. Paris, 1887, pp. 609-610 and 636, sections 489, 510. Part 2. EXERCISE OF THE RIGHT OF AUTHORS AND ARTISTS.
Chapter III. Section 2. On the protection of literary and artistic works at the present time, according to the ideas of the international conventions and the Berne Union.
a See Paris, April 13, 1886, and Rej. July 25, 1887, Ricordi, Pataille, 88, 325— See the critical remarks by M. Lyon-Caen (Sir., 88, 1. 17); by M. Thaller (Ann, droit comm., 1888, p. 4); by M. Darras (Droit des auteurs dans les rapp. intern., no. 489)-See also the remarks published in Pataille, 88, 333.
510. An author granted to a bookseller for certain countries the rights of reproduction which were permitted there; e this bookseller violated the law of the contract, circulated the copies he had produced beyond the territory where a monopoly had been granted him. Was this act reprehensible? We think so; outside of the bounds comprised in the assignment, this publisher is, in regard to the book, really a third party, and the copies which he has published cease to be lawful if they are transported to a market reserved for other persons. (Comp. Ch. Lyon-Caen, Rev. dr. int., 84, 458.) The silence of the international conventions can not do away with the guilty character of this misdeed, but, in order to do away with all ambiguity, care must often be taken to determine this point in an express manner (Luxembourg, 7, 1866. Portugal, 6, 1866. Austria, 6, 1866. Belgium, 3, 1881. Switzerland, 7 and 16, 1882. Germany, 11, 1883. Spain and Italy, 2, 1889. See Paguy, p. 110).
Janlet, Victor. De la Protection des œuvres de la Pensée. Chapter 10, page
Section 2: In what does illegal importation consist!-Article 22 of the law cla sses with the misdemeanor of infringement the act of importing into Belgian territory for commercial purposes articles illegally manufactured.
Two conditions are therefore necessary: (1) The importation into the country of copies which are harmful to the author's right of ownership; (2) a commercial purpose.
[Pages 174-175.) Section 4: Importation of works the reproduction of which is permitted by a foreign law.-Are we to consider as illegal the act of importing into Belgian territory works whose reproduction is authorized by foreign law?
Thus it often happens that a writer sells to a foreign publishers his property in a work after having already assigned it, as far as Belgium is concerned, to a publisher of the latter country.
I will assume that by the foreign law the work falls into the public domain twenty years after the author's death, while by the Belgian law it is granted a period of protection of fifty years.
Can the Belgian publisher have the copies seized in Belgium which a third party has had printed abroad, where the work may be legally reproduced, be. fore the expiration of the fifty-year term?
The answer is certainly in the affirmative. Every introduction of works printed contrary to the rights of the author or of his assigns in Belguim constitutes a misdemeanor; indeed, how can it be admitted, when the Belgian law has granted a fifty-year term of exploitation, that anyone whatsoever may be allowed to elude these provisions and to work injury to the rights secured by introducing at his pleasure into this territory articles which, according to the
a This is what is called the divided right of publication (Getheiltes Verlagsrecht); this kind of sales are especially frequent for musical works; they are, by reason of the difference in the languages, less numerous for other literary productions. (See Lyon-Caen, Rev. dr. int. 84, 487.)
o It ought to be borne in mind that the purchaser of a score, of a book, can carry them around wherever he desires—stranger to the assignment, he is ignorant of the limitations of it; then the necessities of commerce require that it should be so. Who would wish to buy from an assignee a score or a book that one could not carry with him?