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purpose of the law of the country where they were printed, were not to be considered as infringements?
When an author's assignee shows that he has been granted the right of exploitation in Belgium, in conformity with the conditions of the law of March 22, 1886, he has the right to proceed against any act which would be of a nature to diminish the product of his exploitation in Belgium.
Since, therefore, the work is considered an infringement in Belgium, the mere presence of reproduction condemned by the Belgian law is sufficient to authorize complaint and its seizure.
In other words, although such works may be freely sold in a foreign country, they are none the less illegal in Belgium. We have here two domains which must be kept separate, in accordance with the principles of law.
[Pages 176–177.] Section 7: Importation made for the purpose of private use.—The report to the Chamber justly says that the mere act of importation into Belgian territory for private use should not be regarded as a misdemeanor.
What the legislator condemns and wishes to prevent is importation with a commercial object or for industrial exploitation.
Nevertheless, when the introducer acts in bad faith-that is to say, when he knows that the book is an infringement-he is culpable and the author has the right to have the illegal copy seized. In this case there would be, if not a misdemeanor, a least a prejudicial act, falling under the application of article 1382 of the civil code.
The object of the law is to protect works of the mind and to prohibit any act of importation prejudicial to the author; and it would be favoring fraud to grant to a purchaser who acts in bad faith the privilege of introducing into the country works of a nature which would propagate illegal manufacture.
Pandectes Belges. Encyclopédie de législation, de doctrine et de jurisprudence
Belges, Bruxelles, 1888. Volume 25, pages 1259–1260.
[Literary and artistic piracy, sections 147-149.]
147. It is necessary, of course, in order that importation be punishable, that the object imported be illegally produced; if the publication of a book abroad has been authorized by its author, it is clear that he will be allowed to import copies of it into the country.
148. Certain editions are reserved for a certain country, while other printed matter is especially designed for exportation, since different markets sometimes require a particular style and conditions of price necessarily, can not be the same for all countries. What will be the result if a volume is imported into Belgium which was meant for another destination? Does the notice affixed to the work itself render the purchaser liable and does it expose him to be finally treated as an infringer?
149. It is not the bringing of this article into our territory which constitutes piracy; in order to become a legal offense the importation, on he contrary, requires a previous infringement. When publishing his work, at any place, an author knows that copies of it will circulate after sale, and he must expect that they will cross the frontiers of the country from which he wished to exclude them. The question of whether the person who acquires them commits an offense in sending his purchases into other countries is a question of fact, depending upon the agreement existing between the parties, but in any case the breach of such contracts can never occasion for any but a purely civil suit. Wauwermans, Paul. Le Droit des Auteurs en Belgique. Bruxelles, 1894. Pa.
354–355, sections 412, 413.
[Livre VI. Repression of injuries. Chap. II, Action in piracy. Art. III, Special regula
tions in the matter of exhibitions, sale, etc., of piracies.]
412. Especially in the matter of the importation of pirated copies.-It would be otherwise if the object only crossed in transit. Many decisions rendered in France have, however, declared to the contrary. But it must be remarked here that the code of 1810 provided for the introduction in general terms, while our article 22 adds a new condition : Imported into Belgian territory with a commercial object."
413. The importation into Belgium of objects made in a country where no copyright crisis is illegal. There is no reason to consider otherwise the objects which become infringements by the fact of their introduction in another country. Such is the case of editions set apart for a country determined, forbidden in Belgium, the publisher or seller who introduces the copies of that edition in our country goes beyond the rights which have been conceded to him, acts then without rights.
He is like the publisher who stretches the number of copies of the edition, who reproduces by engraving a work of which he has only obtained the right of photographic reproduction ; to the impressario who has printed and sells a score of which he has only the rights of representation, etc.
The fact of the execution with a view to distribution in Belgium, and that distribution has taken place without the intervention of the author from the place of origin; they constitute an infringement as soon as the frontier is crossed, Kohler, " Urheberrecht an Schriftwerken." Section 21, pages 178–179.
III. But furthermore, the professional use of printed copies—professional distribution-is reserved. This reservation appears to result from the first reservation; for if printed copies may not be made for professional use, then of themselves the conditions of professional use can not arise, hence professional use would seem to be of itself excluded. But this is not sufficient; for distribution is a new act, independently detached from production, therefore distribution may be unauthorized, even when production was authorized, as
(1) when production took place in another country, whose laws permit it;
(4) An exception is to be made from III 1-3, where single copies are sought out and furnished for libraries or collectors, from motives purely literary or re lating to the history of culture.
(Section 29 (“ Landesgrenzen "), page 213.] I. As for patents, so also for copyright, the principle of territorial limitation holds good, according to which a particular property in authorship subsists for each separate legal domain, where protection is in accordance with the principles of such legal domain; this is fundamentally true, so that one right is independent of another; as many domains of law, so many copyrights. Hence it follows:
(1) Domestic copyright gives the right of multiplication and execution only at home; these acts in another country can infringe only a foreign copyright.
(2) Paragraphs 1, 2, page 214.
If, within a certain jurisdiction, copyright in a work either does not subsist, or subsists only with restrictions, then the activities corresponding to this legal situation, although they may be morally blameworthy, are indifferent in the eye of the law. The domestic author obtains, therefore, no claim for damages against the person who has reprinted him in a State in which the reprint is legally permitted, or who executes his work in such a State. An exception to this occurs only when reprint takes place abroad with the sole or partial intention of exporting the reprinted articles into the home country; thus far the activity abroad may be considered a sort of preparation for injuring the author at home and in consequence contrary to law; this is not the case when the publisher abroad takes the necessary measures to prevent the introduction of his work into the home country, for instance, if he stamps the copies or places upon them a suitable notice.
(5) Copies of a work covered by the copyright of one State may oisy be circulated in another State when it is eligible for copyright in the latter State. (Above, sec. 182.)
III. Territorial limitation comes up for consideration particularly in the case of such States as in general or in some special instance deny protection to the domestic (inländischen) author. It also comes into consideration when the
a The law is silent upon this point, but it follows itself from the reasonable objects of the law. (Compare the American law, sec. 4956.) The mere verbal commentator will again complain here that violence is done the text of the law. But we are jurists, not framers of cases. (Compare below, sec. 217.)
author, as may happen, assigns the copyright for different states to various persons (sec. 8, Abs. 3, AG.) or gives it to different publishers for the different countries.
If the question is one of reproduction in other languages, there is nothing to be added to the above, since the German publisher will not suffer in general if copies of a French publisher from France or of an English publisher from England enter German territory; therefore such arrangements for publication will not be concluded for a special country, but for all countries. The case becomes one of more urgency, however, when we come to the question of various territories using the same language, where there is a motive for the activities of different publishers; thus in regard to the extensive class of readers of Euglish on the Continent in relation to England, also as to the English-reading people in England and in the United States.
This motive, however, acts principally in the case of the “world speech"music—which is the same for all countries, while the necessity yet remains for various local publishers; on this account the right of divided publication has developed especially in the publication of musical works. Compare, for instance, the German-French (-Belgian, Italian) agreement, a.11.
IV. This territorial copyright, however, can not be completely carried out without certain restrictions; it should not injure legitimate interests. In particular, it is often a literary necessity, when several editions of a work are issued in various countries, to acquire and bring them together in libraries, academies, and similar institutions of learning.
Unfortunately, our legislation in regard to this matter is almost completely lacking in suitable provisions. The reason for this omission was an erroneous conception of copyright and a resulting disregard of the difficulties and interrelations arising in the present connection. The American law is the only one which makes detailed provisions for this case. (Rev. Stat., sec. 4956. Compare sec. 179.)
V. Copyright divided among various countries rests, therefore, upon the diversity of laws and the corresponding diversity of immaterial rights. Hence it follows of itself that when boundaries alter, the territorial copyright must follow the changed boundary; for example, at the cession of Alsace-Lorraine a portion of France fell to Germany and German copyright extended itself over this ceded territory, while French copyright withdrew.
(Section 43, page 267.)
II. Restrictions of commercial rights are possible in very diverse ways:
(1) The restriction may be one of rights; the author may give the publisher the right of publication as regards the copyright belonging to him in one particular territory. He may also give it with respect to the copyright claimed by him in all territories. The latter way is the regular one; the publisher then receives the right of publication with respect to copyrights in all countries, whence it proceeds that an article circulated by the publisher is covered by general copyright and may thus be distributed in all countries.
It is quite otherwise in the case first mentioned ; a work which circulates within the territory of a certain copyright is not covered by copyright in a certain other territory; then in respect to this other territory, it is distributed contrary to copyright. Right of divided publication: This occurs notably in the music trade and in this connection it is universally recognized. But here the particulars above mentioned hold good (sec. 179, 216).
NotE.—Josef Kohler is (since 1888) professor of jurisprudence at the University of Berlin. A review of the above work refers to him as “to-day indisputably the foremost authority in the domain of copyright, not merely in Germany." (E. Zweigert in the “ Beilage zur Allgemeinen Zeitung,” October 4, 1906.] He has published on patents also, on various other branches of law, and on miscellaneous subjects, including æsthetics.
a Compare Appellhof Brüssel 6. Oktober 1897, Droit d'autur XI, p. 8, Court of Appeal, London, ib. x, p. 29.
SUGGESTIONS SUBMITTED ON BEHALF OF THE AUTHORS AND PUBLISHERS BY G. H.
PUTNAM, SECRETARY OF THE PUBLISHERS' COPYRIGHT LEAGUE.
Senate bill No. 2499. SECTION 1, LINE 5.—Exclusive right to print, reprint, etc.-A suggestion was submitted late in the March hearing by Mr. Wise for the modification of this provision. Your committee had very wisely brought the wording of this provision back into line with that which has for many years been in force in the United States statute.
This wording is also substantially in line with that of the European statutes, all of which give to the author and to his assign the exclusive right not only to multiply, but to vend copies of the thing produced.
We trust that your committees may not consider any modification of this provision desirable, particularly at this late stage of the discussion. The question as to the right of the copyright producer to control the price of his article is one that need not affect the wording of the present bill. It is something to be determined by the courts.
SECTION 16, LINES 2–8.--Lithographs, scientific and artistic.-An argument has been presented to your committees in behalf of the modification of this section, so as to prohibit absolutely the use in any volume the text of which has secured American copyright, of lithographic illustrations which have not been manufactured in this country. We trust that no modification may be made by your committees in the wording of the section as now drafted. This wording is in accord with the understanding arrived at a year or more back in the conference between the publishers and the authors on the one hand and the lithographers on the other, and agreed upon at the previous hearings before your two committees. It would be a very serious misfortune for the literary and art interests of the United States if American artists, or American scientists, whose work was being done abroad were prevented by any such absolute prohibition from securing copyright in this country either for the scientifie or artistic designs, or for any text with which it might be essential to connect such designs.
It would also be a serious detriment to the scientific and art interests of the American people to have a prohibition put into force which would necessarily stand in the way of the production for American students and readers of books containing these most important classes of illustrations, which, from the nature of their subject and of their origin, can only be produced abroad.
SECTION 27.--Extension of term of existing copyrights.—The text of the Smoot and Currier bills omit the provision which had been included in the draft of the bill as shaped at the preceding hearing, and which has been retained in the Barchfeld and Kittredge bills, in regard to the extension of copyright.
The wording recommended by the authors and the publishers at the preceding hearing, which recommendation was confirmed at the present hearing, is as follows:
" And provided further, That if such subsisting copyright shall have been assigned, or a license granted therein for publication, and if such assignment or license shall contain provision for payment of royalty, and if the renewed copyright for the extended term provided in this act shall not be assigned, nor license therein granted to such original assign, or licensee, or his successor, said original assign, or licensee, or his successor shall nevertheless be entitled to continue to publish the work on payment of the royalty stipulated in the original agreement; but if such original assignment or license contained no provision for the payment of royalty, and if the work in question be a composite publication, the contributions to which have been purchased outright by the assign, the copyright shall be renewed and extended only in case the original assign, or licensee, or his successor shall join in the application for such renewal and extension.”
It was the judgment of the authors and of the publishers that unless some such proviso be included in the provision the extension of copyright would result in the confiscation, without consideration, of investments amounting to some millions of dollars which had been made in good faith under existing law in electrotype plates and in the building of publishing good will.
SECTION 25, LINE 5.-Term of copyright. We trust that the conclusion arrived at by your committee in regard to a term of copyright covering the life of the author and thirty years thereafter may be retained.
This term is in accord with the term of the present German statute and the term of the British statute now on the calendar of Parliament.
The publishers have pointed out the importance for the interests of the community as a whole in having the copyright of an entire series of works by any one author terminated at the same time.
Unless there be such uniform date of termination the public loses the advantage of having brought into the public domain at one date reissues of works that have become standard.
In the case of scientific books it may be particularly important that a later generation should secure a complete reissue with a scientific revision bringing the material up to date.
SECTION 34, PAGES 18-19-Importation of copyrighted books.-The contention submitted by Mr. Jenner for the change in the provision as drafted in all the four bills now pending provides for the absolute removal of restrictions, for individuals as well as for associations, in the importation of copyrighted books. This means that after the law has declared that the author and his assigu have the “ exclusive control” in the article produced, “ to multiply, to vend," etc., all the citizens of the community (with the exception only of booksellers) are placed outside of the restriction and are permitted to act precisely as if no such copyright control had been given. There is, of course, no logical ground why from the privilege that is extended thus universally the bookseller should be excepted.
There is also no logical ground why citizen B, who happens to have no direct connection with transatlantic booksellers, should be blocked from a privilege which is extended to citizen A.
Such a provision for the removal of the restrictions of copyright is in itself absolutely exceptional.
The copyright laws in all the other States of the world are in accord in maintaining consistently the exclusive control given to the producer and to his assign. * Stripped of its verbiage and personalities, Mr. Jenner's argument simply undertakes to do away not only with the principle, but with the practice of copyright.
The statement that unless this privilege of unrestricted importation, irrespective of the permission of the owner of the copyright, be granted, the foreign editions of the books in question could not be secured is absolutely without foundation. There is no difficulty to-day in England, or in other of the States of Europe, in securing, under arrangement with the representative of the copyright owner, foreign editions of books, which editions happen to be more convenient for the requirements of the student.
German students in London are securing in this manner from time to time copies in the language of origin of books which are fully controlled by British copyright.
The routine that had obtained in the United States prior to 1891 for the importation of copyrighted books can be carried out to-day, in connection with the development of transatlantic bookselling connections, still more effectively.
It is not even necessary for the student, or reader, desiring the book to make his application directly to the representative of the copyright owner. His order can be placed with any intelligent bookseller, who has no difficulty in arranging, through the publisher controlling the American copyright, for the importation required.
The simple question at issue is whether the purchaser of the American copyright of a work is to be protected under the law in the value of that which he has purchased.
The statute which does not secure to the purchaser the control and the advantage of that which he has purchased secures neither copyright nor justice.
Mr. Jenner's argument laid stress on the necessity of the reader standing “hat in hand " before the publisher in order to secure permission to get a book that he was in any case entitled to get. This is, of course, a mere figure of speech. In any use of property the applicant has to arrive at an arrangement with the owner of such property.
If Mr. Jenner owned a water course, and somebody wanted to secure water power, he would have to come to terms with the owner of the course.
If, in like manner, somebody wanted to secure a right of way across a field belonging to Mr. Jenner, he would have to arrange with the owner.
The matter in question is whether the owner of the American copyright shall have his property taken without compensation.