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In Spain for the first time appears the broad announcement that "Intellectual property is governed by the common law without other limitations than are fixed by that law," and this thought is repeated in several of the Latin-American Republics. In Bolivia, for instance, "The author of a printed or lithographed work enjoys the property in such work and the exclusive right of reproduction during his life."
In Colombia, "Literary and artistic property or copyright consists in the privilege accorded to authors by law of profiting by their works."
In Costa Rica, "Intellectual property is of the same character and subject to the same rules as movable property."
In Mexico, "Property in the productions of labor and industry shall be ruled by the same laws as ordinary property."
In Venezuela, "The right an author possesses over his compositions constitutes intellectual property which is sacred and inviolable like all other property and is to be governed by the rules of the common law, subject to any restrictions established by law."
Is it not a travesty upon the intelligence of the United States and Great Britain and of all the English-speaking countries of the world that we should fail to recognize in the intellectual productions of genius as high a measure of legal property and protection as is accorded by our struggling and ofttimes scorned neighbors of South America?
Very truly, yours,
Hon. REED SMOOT,
TREASURY DEPARTMENT, OFFICE OF THE SECRETARY,
United States Senate. SIR Reference being had to the correspondence with the Secretary of State relative to the attitude of the German Government with respect to the proposed copyright law, and to the suggestion that a member of the American Tariff Commission present the matter to your committee, I desire to invite your attention to the following letter addressed by the Commission to the Secretary of State:
"SIR: The agreement concluded on January 15, 1892, between the German Empire and the United States, provides, on the one hand, that the citizens of the United States of America shall enjoy in the German Empire, the protection of the copyright law in regard to works of literature and art, as well as the protection of photographs against unauthorized reproduction in the same manner as is accorded by the law to citizens of the Empire; and on the other hand, that the provisions of the copyright act shall be extended by the United States of America to the citizens of the German Empire.
"This agreement is of a reciprocal character; but while the German copyright law offers protection without special conditions and formalities, the American copyright act makes the extension of the protection dependent upon conditions, the compliance with which, on the part of German citizens is difficult and burdensome.
Especially the manufacturing clause' causes continuous complaints on the part of German citizens. According to section 4956 of the Revised Statutes (law of Mar. 3, 1891), a work is not entitled to the protection of the law unless two copies of the work to be protected are delivered to the Librarian of Congress in Washington not later than on the day of publication in America or in a foreign country. In the case of a book, photograph, chromograph, or lithograph, these two copies must be produced from type plates, negatives, drawings on stone, or reprints, prepared in the United States.
"Another feature which is considered unfair is that, while the copyright remains in force, the importation of the protected work into the United States of America is prohibited. Finally, another onerous provision is that copyright works of literature and art in America must bear the imprint 'copyright 19by -' in the English language.
"By the law of January 7, 1904, certain departures from this law were permitted for the works of foreign literature and art brought for exhibition at the St. Louis Exposition. Further, by the act of March 3, 1905, certain drastic features of the law were removed by making it possible to protect against reprint and translation, for the period of one year, all books published outside of the United States in languages other than English by complying with simpler formalities, by filing the copies within a period of thirty days after their appearance, and without complying with the provisions of the manufacturing clause.'
"As is well known, a bill is now pending before the Congress of the United States, by which, in addition to other ameliorations, especially as regards the conditions and forms of registration, as well as the forms and effects of the copyright mark, the provisional term of protection is to be extended from one to two years.
"This subject is brought up in the present negotiations because great dissatisfaction with the present state of affairs exists in Germany, as shown by numerous resolutions introduced in the Reichstag, and it is expected that in the conclusion of a commercial agreement a more favorable turn in this regard may result from German authors, artists, etc.
"All wishes would be best met if the United States would join the Berne convention of September 9, 1886, supplemented by the provisions of May 4, 1896, and the declaration of the same date.
"Should this be impossible, the American commissioners are requested to inform the German commissioners whether they can suggest other propositions or can give other assurances as to the removal of the cause of existing complaints. In any event, it is urgently to be desired that the American Government continue in its present course which it has entered upon through the pending bill in Congress for a new copyright law. In connection with that we would gratefully welcome the greatest possible limitation of the severe application of the 'manufacturing clause,' so that not only works of literature but also lithographic works might be exempted from the provisions of the 'manufacturing clause.'"
To this memorandum the following reply was made by the American commissioners:
"The Congress of the United States has now under consideration the enactment of legislation looking to the removal of all objectionable features of the present copyright law.
"The American commissioners would be glad to receive from their German colleagues any suggestions of modifications which they thought proper and wise, to the end that they may be placed before Congress in such manner as shall be considered most desirable for all parties concerned.
"The American commissioners feel that to incorporate an amendment of the copyright law into a commercial treaty would be entirely within the power and discretion of the President, and the Secretary of State, but the question is one as to which there is some considerable doubt whether more advantageous results can not be secured by presenting the proposed changes to the Senate committee having the matter in charge, and therefore they hesitate to make any specific recommendation on the subject other than that heretofore outlined."
It was added that personally the American commissioners were in favor of the German propositions and were willing to recommend them to their Government, but they thought it would be wiser not to incorporate a paragraph to that effect in the proposed draft of a treaty, since it might jeopardize ratification. Subsequently, and in response to the above suggestion, the German commissioners presented the following supplemental memorandum :
"In case it should be impossible for the United States to become, within reasonable time, a party to the Berne convention of September 9, 1886, for the formation of an international union for the protection of works of literature and art, and the supplementary Paris act of May 4, 1896, as well as the Paris declaration of the same date, it would be regarded on the part of Germany as a substantial improvement in the present status of the German-American copyright relations, if the new copyright bill (Fifty-ninth Congress, first session, p. 6330) at present before the United States Congress should be extended by the insertion of the following provision :
"Foreign works of literature and art which have not been produced in conformity with the provisions of the manufacturing clause, and which do not bear any notice of copyright, shall be entitled to the full protection of the copyright law for American works of that character, only when published in a country which extends the protection of its copyright law to American works on the same terms as to domestic works, without requiring that notice of copyrights be affixed to the work, or that the work be produced in that country.'
"In case the insertion of such a provision should be found impracticable, it would be regarded of some value if the` law could be modified in the following points:
"1. In section 16(a) of the bill the ad interim copyright for a book printed abroad in a foreign language to be extended to five years instead of two.
2. The requirement of the manufacturing clause for lithographs (except those where the subjects represented are located in a foreign county'), as provided in section 13 in connection with section 17, be removed, or in case this should be found impossible, lithographs, as well as books printed in a foreign language, be entitled, under the provisions of section 16, to an ad interim copyright for five years.
3. It should be stated expressly that an ad interim copyright can also be secured without notice of copyright being affixed to the work."
"While it would appear from section 16, in connection with section 17, that a person entitled to the protection of the copyright law can secure an ad interim copyright, even if the work does not bear the notice of copyright, as requi:ed by sections 9 and 14, there may arise some doubts as to the correctness of this interpretation."
"In view of these representations and the commitments of the American commissioners, we feel it our duty to bring this matter to the attention of the Department of State, in order that it may be determined whether the German requests for the modification of the American copyright law shall be brought to the attention of Congress by the President, or, if that course is not deemed wise or practicable, whether the members of the commission have any further duty to discharge in the premises.
"S. N. D. NORTH,
The provision of the Constitution with respect to copyright is the same as that with respect to patent rights. There is no inhibition against foreigners under the patent law, nor any requirement that patented devices shall be manufactured and produced in this country as a condition precedent to the securement of letters patent, and the question might naturally arise, admitting that Congress had the power to compel the manufacture of such devices in this country as a condition precedent or subsequent to the validity of the patent, whether it could provide that only foreign patentees should be compelled to so manufacture, without running counter to the rule with regard to class legislation.
These remarks are made with reference to the situation under the patent laws for the reason that no such doctrine has ever been invoked for numerous and obvious reasons. It is apparent that if the patent law provided that all devices and inventions should be manufactured before letters patent issued, many of our ablest inventors would never secure patent protection; but, just in so far would the right granted by the Constitution to inventors be prohibited by express legislation. There is nothing in the constitutional provision that draws a line of demarcation between the American and foreign author.
The copyright provision contemplated that authors should be secured the enjoyment of certain property rights. It was the grant of a privilege or concession and not the denial of a right, the assessment of a tax, or the imposition of a burden. It has been held that the power to tax is the power to destroy. If in legislation with respect to patents and copyrights Congress shall have the right to impose a tax, manifestly then they have the right to pass legislation which shall defeat the privilege entirely.
The provision in the copyright bill with respect to the "manufacturing clause" is the denial of a right, the imposition of a burden, practically the assessment of a tax. It is a class of legislation which has no particular place or part in the copyright act and is more in the nature of tariff legislation, and, if constitutional at all, should be found in the tariff act and not in the copyright act.
In making this statement I am not speaking as the chief of the customs division of the Treasury Department, but as a member of the tariff commission sent to Germany, and obligated by a promise made to the German commissioners to present to your committee certain views which appeared, on the face of things, at least reasonable.
I have the honor to remain, sir, yours, very respectfully,
JAMES L. GERRY.
a This would apply to the German copyright law.
This index is a combined index for the three volumes containing the stenographic reports of the