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and carefully guarded is worthy of note. His importation is not "under permission" of the copyright proprietor, or licensee, otherwise the Canadian publisher, but is an absolute right. The licensee (publisher) is bound to import upon demand and deliver the book to the individual at the London selling price with duty and forwarding charges (postage) only added, and if he fails to do so, the prohibition of importation is suspended or revoked.
Assuming the act to have worked conveniently in Canada, it does not follow that an act suitable for a country of 5,000,000 people is suitable for a country of 85,000,000. We can not open the door to importations of the foreign books by the American publisher for sale if we wish to preserve to American labor the manufacture of the American reprint, and there is no Government officer who can conveniently be charged with the duty of determining the existence of the various conditions which authorize in Canada the suspension or revocation of the prohibition of importation. The Canadian statute, I should suppose, would be found defective in not further defining the "ordinary selling price" in the home market. During the first season after publication a book will be sold at a uniform price, but after that it generally has more than one selling price the price of a new copy and the price of a secondhand copy, the price of a first edition and the price of a later edition-and these divergences increase with the lapse of years.
BRITISH STATUTES PERMIT IMPORTATION BY INDIVIDUALS AND LIBRARIES FOR USE BUT NOT FOR SALE.
Again relying mainly on the Librarian's statement and compendium, it appears that the right of importation is now controlled in Great Britain by an act of 1842 and an act of 1844. The act of 1842 (sec. 17) prohibits importation for sale or hire of reprints made outside of the British domains, except as such importation shall be made by the British copyright proprietor or with his assent. The section was specifically made applicable to books first composed or written or printed and published in the United Kingdom and reprinted outside of the British domains. Importations by libraries or other institutions and by individuals were not distinguished. It would seem that if the importation is for use only and not for sale or hire, it is not prohibited. The international copyright act of 1844 (sec. 10) prohibits importation without consent of the British copyright proprietor of "all copies printed or reprinted in any foreign country except that in which such books were first published," the words "for sale or hire" being omitted.
The acts of 1842 and 1844 came under judicial review in the case of Pitts v. George (1896) (2 Ch., 866). The case involved a musical composition (regarded as a book) first composed, published, and copyrighted in Germany. The plaintiff, as assignee of the English copyright, sought to restrain the defendants from importing for sale copies of the German edition, which they had bought in Brussels. The question turned on the effect of section 10 of the act of 1844 upon section 17 of the act of 1842, which had not in terms been repealed. The defendants contended that the act of 1844 by implication excepted the original foreign edition and was to be construed as a limitation of the more general prohibition of the act of 1842. The lower court sustained this contention, but on appeal the decision was reversed by the vote of two of the judges, one judge agreeing with the court below, and the importation of the German edition, although the original, was held to be barred. Thus there were two opinions in favor of exclusion and two against it.
So far the British acts are not applicable to our conditions at all, because both the acts of 1842 and 1844 permit the importation of the foreign edition for sale or hire either by or with the consent of the British copyright proprietor. Similar freedom of importation by the American publisher can not be tolerated in this country in any form or under any guise, if we intend to preserve the policy of requiring the American reprint to be made by American labor.
The act of 1842 did not expressly distinguish between importation for sale or hire and importation for use only, and, as already said, the act of 1844 did not refer to the object of the importation at all. As the defendant's importation in the case of Pitts v. George was for sale the question of the right to import for use only did not arise, but in considering the question the judges referred to that aspect of it. As the court held that the act of 1844 did not supersede the act of 1842, the earlier act would seem to control the question. Now, as the act of 1842 expressely prohibited importation only for sale or hire, it would follow that importation for use only was not prohibited, and, accordingly, Lord
Justice Rigby, one of the judges who participated in the majority ruling, remarked (p. 878) that the act of 1842 "provides only against importation for sale or hire. A book lawfully printed abroad might, so far as this act was concerned, be lawfully imported by the owner of it for his own private use though not for sale or hire," and in referring to the international copyright act of 1838 remarked (p. 880) that by it "the importation of books otherwise than for sale, as, for instance, for hire or for the private use of the importer, was not struck at," and in considering the reasons for the enactment of 1842 said (p. 881) “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." Lord Justice Lindley said (p. 872), referring to section 17, "this section, however, is confined entirely to printed books composed or written or printed and published in the United Kingdom. It does not apply to other books," and referring to both section 17 and section 15 said "neither of these sections prohibits importation for private use, but only importation for sale or hire."
Now, if the view of the two majority judges was correct, importation into the United Kingdom from abroad of a book originating in a foreign country is legal, notwithstanding the British copyright, if the importation is for use and not for sale or hire; and if the ruling of those two justices is wrong, and the ruling of the dissenting lord justice and that of the lord justice in the court below, whose decision was reversed, is correct, then importation into England of books originating abroad is legal even if the importation is for sale or hire, and the same thing would be true, of course, of an importation for use. I do not find that the case went to the House of Lords.
The Librarian, in his statement, coincides with this conclusion, but I find, upon examining the opinions in Pitt v. George, that the matter may be stated somewhat more strongly than he states it in favor of an existing right of importation into the United Kingdom of foreign books for use.
Mr. Putnam, in his Independent article quoted above, touching the subject of importation in England, wrote as follows:
"The English publisher who has purchased the British copyright of a work has secured under the law the exclusive control of said work for the British territory."
In view of the foregoing exposition of the British law, Mr. Putnam's statement requires considerable qualification; it needs to be pared by about 99 per cent of its scope, and if that is done, the thin sliver of fact remaining would be irrelevant to the subject we are discussing.
It appears from the Librarian's statement that the law of Belgium penalizes the importation of an illicit edition for a commercial purpose, but does not forbid the importation of a copy for private use; also that the law of Germany of June 11, 1870, made the same limitation and distinction, but the present statutes omit mention of it. A recent commentator, Kohler, insists "that importation of foreign editions is a professional and 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;'" and "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." This I understand to be the opinion of a learned commentator upon the state of the existing German law.
Respecting the practice in other continental countries, the Librarian states that upon personal inquiry last year, at the International Bureau of Berne, and at the copyright bureau in Paris, and at the office of the Society of Authors in London "the officials disclaimed precise knowledge respecting the practice of prohibition or allowing importation of copies merely for private use or by institutions, and that the question appeared to them to be a novelty."
SIGNIFICANCE OF "UNDER PERMISSION." UNDER IT AMERICAN LABOR COULD BE
[By Wm. A. Jenner.]
If the publisher-the purchaser of the American rights has the power to forbid importation, he will grant or withhold permission as interest may in
cline; and when Mr. Putnam says that the "student or reader" can place his order "with any intelligent bookseller, who has no difliculty in arranging through the publisher controlling the American copyright, for the importation required," the meaning is that the tax on the student or reader will be collected through the dealer, or that the publisher will himself supply the foreign book to the intelligent bookseller for the latter's customer-at a price. It is perfectly plain that if such transactions occur to any material extent, the incentive to the American publisher, who purchases the American rights in the foreign author's work to reprint the work or adapt it to the American reader, is diminished just as much as if the book buyer should be at liberty to import for himself without buying permission. Therefore the contention that control by the American proprietor over importation by the individual is necessary in order that the publisher may be encouraged to adapt the foreign author's work to the American reader fails.
But this suggestion of the facility with which the intelligent bookseller can arrange through the publisher for importation requires some further examination. Mr. Putnam did not explain the nature of that arrangement. A considerable danger to the settled policy of Congress seems to lurk in its possibilities. G. P. Putnam's Sons is a bookseller and also an importer and a publisher.
The prohibition of importation for use and not for sale is for the benefit of the typesetter whose labor in making the American edition of the foreign author's work is a condition of the copyright monopoly given to the foreign author and his assigns, the American publisher. Is a bookseller's importation at the request or upon the order of a customer an importation for use and not for sale? If it is not, then a bookseller can not arrange with the publisher for an importation of the foreign book without violating the law and the American publisher's connivance in that importation would, in my opinion, be itself a violation. If, on the other hand, such an importation is an importation for use and not for sale, then why may not G. P. Putnam's Sons, as a bookseller, make such importations, and if it is also the proprietor of the American rights, why may it not arrange with itself for the importation. If it can do this respecting one copy, it can be done with respect to a thousand or five thousand copies.
G. P. Putnam's Sons, as proprietor of the American rights, or a dummy proprietor can simply give a standing permission to G. P. Putnam's Sons as bookseller to import as many copies of the foreign-made book as will find a market. The proprietor will not sue himself as bookseller, and the dummy will not sue for infringement of the copyright, and there will be no one to set the law in motion, and there will be no law to be moved.
The requirement of manufacture in this country of "an edition suited for the special requirements of American readers" will be no hindrance to that arrangement of proprietor and bookseller because the adapted edition could be made at the minimum cost merely to satisfy the conditions of manufacture here; two published copies of the adapted edition would secure the copyright, the cost of which would easily and quickly be recouped, especially if the proprietor-publisher-bookseller should have a typesetting, printing, and binding establishment of his own. G. P. Putnam's Sons happen to have such a shop.
If the arrangement between proprietor and bookseller should take that form, and I see no reason why it should not, what would become of the interests of labor, which the existing law protects and the pending bill proposes to protect? I imagine that so far as the making of the books actually distributed to the American public is concerned, the advantages to American labor would be practically nil.
Hon. REED SMOOT,
COSMOS CLUB, Washington, D. C., April 1, 1908.
Chairman of the Senate Committee on Patents. DEAR SIR: As the representative of the National Academy of Design and of the Fine Arts Federation, an association composed of delegates from the different artistic societies of New York, I beg to submit to the consideration of your honorable committee a few suggestions relating to Senate bill 2499 “To amend and consolidate the acts respecting copyright," which I hope will meet with your approval.
In many respects the bill, in so far as it deals with the interests of the artists, is satisfactory, and if it becomes a law will be a welcome advance in legislation on this subject.
The points to which I venture to call your attention are:
First. It has long been the contention of artists that a copyright notice on an original work of art is not only unnecessary but disfiguring.
In section 19 of the bill the notice is much simplified and less objectionable, but it still remains disfiguring and discordant. Certain classes of works of art,
miniatures, medals, bas reliefs, etc., can not be marked with the word Copyright" or the abbreviation "Copr." without destroying their artistic value. The artist often omits his own signature for the same reason. A copyright notice of any kind is often objected to by the purchaser, and is removed as a condition of sale.
A copyright notice on the original is not required in any other country but the United States, and by common custom abroad, wherever copyright laws exist, a work of art carries with it the presumption of copyright.
The recent decision of the Supreme Court in the Werckmeister case that the original work of art need not bear a copyright notice is, I respectfully submit, a cogent reason why lines 10, 11, and 12 on page 6 of section 10 of the bill may be eliminated, and lines 15, 16, 17, 18, and 19 on page 10, section 19, be so amended as to read: "That the notice of copyright required by section 10 of this act shall, in the cases of copies of works of art specified in subsections (f) to (k), inclusive, of section 5 of this act, consist of the letter C inclosed within a circle, thus: (C), accompanied in every case by the name of the copyright proprietor; or, in the case of copies of works of art specified in subsections (f) to (k), inclusive, of section 5 of this act, by his initials, monogram, mark, or symbol, provided that on some accessible portion of such copies or of the margin, back, permanent base or pedestal, or of the substance on which such copies shall be mounted his name shall appear. If the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication. But in case of works in which copyright is subsisting when this act shall go into effect, the notice of copyright may be either in one of the forms prescribed herein or in one of those prescribed by the act of June 18, 1874.
Certain processes of reproduction are executed more skillfully abroad than here, and I submit that it is not quite just to the artist to force him to employ inferior methods in the reproduction of his works. For his reason I respectfully urge you to leave section 16 stand as printed in the bill.
In the second place, I beg to call your attention to the fact that in the recent hearing before the joint committees arguments were presented in favor of adding to the requirements set forth in section 16, so that a lithographic or other reproduction of a picture should necessarily be made in this country in order to secure copyright. I can state positively from my own knowledge of this subject and as a practical and practiced lithographer that no man can properly reproduce a picture except in the presence of the original. The same is true of any reproduction whatsoever.
Hon. REED SMOOT,
United States Senate, Washington, D. C.
F. D. MILLET.
LIBRARY COPYRIGHT LEAGUE,
DEAR SIR: I inclose a statement with reference to the question concerning which you asked me for information at the copyright hearing yesterday, and request that it may be permitted to be incorporated in my remarks or appended as a footnote thereto.
I omitted to mention yesterday what seems to me a rather important point, namely, that there should be a provision in the law by which notice of the death of authors should be filed by their personal representatives with the copyright office, in order that it may be possible to ascertain the duration of the period during which copyright should remain after such death. Many authors are inconspicuous persons whose death will not appear in the public prints, and it may be almost impossible to ascertain when they have died, or, indeed, whether they are still alive, unless it be made the duty of the person to whom the copyright devolves through such death to notify the copyright office.
I have received a letter from Mr. Clement W. Andrews, librarian of the John Crerar Library, Chicago, requesting me to call the attention of the committee to the following point:
"From the point of view of the purchaser of books (either librarians or individuals) that some safeguards be required in the copyright bill against the
too prevalent custom of reentering for copyright essentially the same material as either a new edition or under a new title. The abuse of this privilege is really a fraud upon the public. Of course the copyright is not valid, except for the additions, but the public does not know this. In this connection a protest should be made against the provision of the third bill making the deposit of material not obligatory. If this were to be allowed, it would be impossible in many cases to find out just what the contents of the first edition are and how much is protected by the second copyright."
Yours, very truly,
BERNARD C. STEINER.
NATIONAL ASSOCIATION OF EMPLOYING LITHOGRAPHERS,
Hon. FRANK D. CURRIER,
Chairman Committee on Patents,
House of Representatives, Washington, D. C.
DEAR SIR: Permit me to address you upon the subject of H. R. 243, which happens to be the bill now pending before the Committee on Patents, of which you are the chairman.
I know at the present time of no objection to the bill except so far as a portion of its manufacturing clause permits certain lithographs to be made in other countries where the lithographs represent subjects located in a foreign country. To that portion of the manufacturing clause the associated lithographers have objection.
In order that the objection which I am making may be considered with the force which would attend the objection of any considerable number of persons, permit me to say that our association consists of a large number of employing lithographers, located in all parts of the country, and is the only association of lithographers which is national in its character, there being a number of small local associations dealing with subjects of local concern.
Permit me to say that the lithographers of the country deem the clause to which they object to be one which has been placed in the bill through inadvertence and a misunderstanding. We appreciate that the argument in its favor is that the color scheme of an object located in a foreign country must so frequently be worked out in the immediate view of the object as to make such a provision almost essential to such a bill. And now let me proceed to explain that such an argument is fallacious and arises from a misunderstanding of the practical side of the lithographic trade. If an artist desires to place on stone a reproduction of a famous oil painting in some art gallery, he doesn't take his stones to the art gallery; neither does he take the picture to the lithographic establishment. In some cases, where such a thing is permitted, a photograph of the work of art is taken and the photograph is colored, or a colored sketch is made from it. Or in other cases, where a photograph is not permitted, the picture is copied by some other artist, then this sketch in colors is taken to the lithographing establishment, where the artist places the thing on stone, and the artist there in the lithographing establishment does the work which the argument back of the manufacturing clause of the copyright bill contends must be done in the immediate view of the object. Every lithographer knows that that is not the way the thing is actually done. If a landscape or some outdoor view is to be reproduced, the artist does not cart his stones out to the landscape, but a photograph is taken and a colored sketch is made, or a colored sketch is made without the photograph and is taken to the art room in the lithographing establishment. It is perfectly absurd to say that the arist can do that work in the immediate view of the object because those who have any experience at all in the matter know that the careful adjustment of color to color requires that minute calculation and study of the colored sketch be made, which is utterly impossible except where the colored sketch is immediately before the very eyes of the artist, to be handled by him. If an artist is to reproduce a building, he neither brings the building to the lithographing establishment nor does he cart his stones to the building. He puts the work on stone from a sketch or from a photograph. If the artist reproduces the picture of a beautiful woman, it is the custom to have him use a sketch or photograph, and it is not, at the present time, deemed either necessary or practicable to introduce the woman into the lithographing establishment.