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Section 15, which is referred to in said section 31, provides that of the printed book or periodical specified in section 5, subsections (a) and (b)—

except the original text of a book of foreign origin in a language or languages other than English, the text of all copies accorded protection under this act, except as below provided, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, or from plates made within the limits of the United States from type set therein, or, if the text be produced by lithographic process or photo-engraving process, then by a process wholly performed within the limits of the United States, and the printing of the text and binding of the said book shall be performed within the limits of the United States. (35 Stats., 1078.)

My attention has been called to two opinions from this Department construing and applying a similar provision in the copyright act of 1891 (26 Stats., 1107), one by Solicitor-General Conrad (21 Op., 159) and the other by Attorney-General Griggs (23 Op., 371), which, it is supposed, have some bearing upon the question here presented. By section 3 of the said act of 1891 section 4956 of the Revised Statutes was amended so as to read as set forth therein, and one of the necessary prerequisites therein prescribed for securing a copyright was that the applicant should, not later than the date of publication in this or any foreign country, deliver at the office of the Librarian of Congress, at Washington, or deposit in the mail within the United States, addressed to the Librarian of Congress, two copies of the book or thing sought to be copyrighted, which, in the case of a book, should be printed from type set within the limits of the United States, and it was further provided:

During the existence of such copyright the importation into the United States of any book * * * so copyrighted, or any edition or editions thereof, or any plates of the same not made from type set within the limits of the United States, shall be, and it is hereby, prohibited.

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In the first opinion above mentioned the facts apparently were that American owners of an American copyright obtained on an American literary work before the passage of the act of 1891 were seeking, under that act, to prevent the importation of an unauthorized foreign edition, and Solicitor-General Conrad held that the above-quoted provision was applicable and prohibited their importation, although the copyright was not issued under said act of 1891.

In the latter opinion, the facts were that Harper & Bros. were endeavoring to import an eighth edition of Liddel & Scott's Greek-English Lexicon, which had been copyrighted in the United States under the copyright laws existing before the passage of the act of 1891, said importation consisting of the folded and unstitched sheets, designed to be stitched and bound in volumes in this country, but which had not been printed from type set within the limits of the United States; and Attorney-General Griggs held that the prohibition contained in section 56, Revised Statutes, as amended by said act of 1891, did not pro

hibit the importation because the copyright was procured under the copyright law as it existed before said amendment was made.

While there was a difference in the facts presented, yet it is difficult to draw any distinction between the principles involved in these two opinions. The question answered in the first was "whether section 3 of said act (of 1891) is applicable to books copyrighted prior to the passage of said act," and precisely the same question was presented and answered in the second opinion. But although doubt was expressed in the latter as to the correctness of the result reached in the former, yet it was suggested that a distinction arose from the fact that in the former opinion the statute was invoked to protect an American copyright against the importation of a piratical edition, while in' the latter the statute, if applied, would prevent an importation sought to be made by the owner himself of the American copyright.

The result was, if the opinions were sufficiently consistent to stand together, that the owners of an American copyright obtained under laws existing before the passage of the act of 1891 received the benefits arising from section 3 of said act, while upon them were not imposed the burdens which were made to accompany those benefits. However,

the opposite conclusions reached in those opinions was manifestly the result not of a difference in the principles involved, but a difference in the process of reasoning. In the former opinion it was held in substance that inasmuch as section 3 was an amendment of section 4956, Revised Statutes, it applied to all copyrights procured thereunder, before as well as after the amendment, although it could not have a retroactive effect as to importations of books made before the passage of the amendment, while Attorney-General Griggs based his conclusion upon the peculiar language of section 4956, Revised Statutes, as amended, holding that the language "during the existence of such copyright, the importation into the United States of any book, etc., so copyrighted," so restricted the clause in question as to make it apply only to copyrights issued under the act as amended.

I am inclined to think that, in so holding, due consideration was not given to the fact that the words upon which special stress was laid were, by the act, made a part of said section 4956, Revised Statutes, and thus a part of the general copyright law, and were therefore intended to apply to all copyrights issued thereunder, regardless of whether issued before or after the passage of the act of 1891.

But I do not regard either of these opinions as having any special bearing upon the question now in hand, inasmuch as the language of section 31 of the act of March 4, 1909, does not admit of the construction that was placed upon section 3 of the act of 1891 by Attorney-General Griggs. Said section 31 provides that—

During the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this act,

is prohibited. This language clearly embraces every American copyright in a book, regardless of whether that copyright was obtained under the copyright laws embodied in the Revised Statutes, or the act of 1891, or the copyright act of 1909. If the statute were otherwise, it would have produced the anomalous condition that books copyrighted prior to March 3, 1891, would not be prohibited from importation by any manufacturing provision; that books copyrighted after March 3, 1891, and prior to July 1, 1909, the date upon which the act of March 4, 1909, became effective, would be prohibited unless printed from type set in the United States or from plates made from type set in the United States, while books copyrighted after July 1, 1909, would be prohibited if not printed from type set in the United States or from plates made from type set therein, and the printing and binding both performed within the limits of the United States.

Such a result, I think, was never intended by Congress, and I am therefore of the opinion that the appraiser was right in holding that the importation in question was unlawful.

Respectfully,

GEO. W. WICKERSHAM

Attorney-General

The SECRETARY OF THE TREASURY

["Treasury Decisions." V. 18, No. 22, December 2, 1909. 8°. Washington, Government Printing Office, 1910, pp. 6-9. "Official Opinions of the Attorneys-General of the United States." Vol. 28, pp. 90-94.]

REGISTRATION IN PATENT OFFICE OF PRINTS DESIGNED TO BE USED ON
ARTICLES OF MANUFACTURE

The copyright act of March 4, 1909 (35 Stat., 1075), did not relieve the Patent Office of its duty, and it is still required to register all prints which have heretofore been registered therein under the act of June 18, 1874 (18 Stat., 78), and in the same manner as they have heretofore been registered.

DEPARTMENT OF JUSTICE
December 22, 1909

SIR: I have the honor to acknowledge receipt of your communication of the 10th instant in which my opinion is asked with reference to the effect, if any, which the act of March 4, 1909 (35 Stat., 1075), entitled "An act to amend and consolidate the acts respecting copyright," has upon the right of applicants to have registered in the Patent Office engravings, cuts, or prints designed to be used on other articles of manufacture.

It appears that different views have been taken with reference to the proper construction of this act by the Commissioner of Patents and the Librarian of Congress, the former insisting that by its terms his power to register in his office engravings, cuts, or prints of the character mentioned has been abrogated, and that if applicants still have the right to have such engravings, cuts, or prints registered it must be done in the office of the Register of Copyrights; while the

Dec. 22, 1909

latter contends that the Register of Copyrights is not authorized to register in his office any engravings, cuts, or prints which are designed to be used on articles of manufacture.

I think a careful consideration of the several acts of Congress relating to patents and copyrights will lead to a satisfactory solution of the question.

By the act of July 8, 1870 (16 Stat., 198), as appears from the caption of said act, Congress revised, consolidated, and amended the statutes then existing relating to patents and copyrights. The first 76 sections of this statute related exclusively to patents, while sections 85 to 110 related to copyrights. By section 71 of said act it was provided that any person who, by his own industry, genius, efforts, and expense has invented or produced (among other things) any new and original impression, ornament, pattern, print, or picture, to be painted, cast, or otherwise placed on or worked into any article of manufacture, may, upon the payment of the duty required by law, and other due proceedings had, the same as in the case of inventions or discoveries, obtain a patent therefor.

By section 86, which is the second section relating to copyrights, it was provided that any citizen of the United States or resident therein who shall be the author, inventor, designer, or proprietor of any (among other things) engraving, cut, print, or photograph, or negative thereof, shall, upon complying with the provisions of this act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same.

It will thus be seen that the word "print" was used in this act in connection with both things which might be patented and also those subject to copyright, but the distinction between the two characters of prints was clearly drawn by the clause in said section 71, which limited the prints that might be patented to those which were "to be placed on or worked into any article of manufacture."

In codifying this act, section 71 was carried into the Revised Statutes, with slight verbal changes, as section 4929, in chapter 1 of title 60, which relates solely to patents, while section 86 was copied, with slight modifications, as section 4962, in chapter 3 of said title, which relates solely to copyrights, and thus the distinction between the two characters of prints was preserved with equal clearness in the Revised Statutes.

By the act of June 18, 1874 (18 Stat., 78), Congress amended the law relating to patents, trade-marks, and copyrights by, in section I thereof, providing that no person shall—

maintain an action for infringement of his copyright unless he
shall give notice thereof
for a print, cut, engraving,

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certain statements therein set forth, and by the third section it was provided that in the construction of the act the words

engraving, cut, and print shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office;

and the Commissioner of Patents was charged with the supervision and control of the entry or registry of such prints or labels, in compliance with such regulations as applied to the registry of copyrights, except that a fee of $6 was to be paid instead of $1 provided for registering a copyright.

Under the provisions of these two statutes, as interpreted by the Commissioner of Patents, two classes of patents were granted, one for inventions in an art, for a machine, a manufacture, or composition of matter, or any improvement thereon, and the other for ornamental designs placed upon or worked into and forming an inseparable part of articles of manufacture. And, in addition to these, the Commissioner of Patents entered for registration, "in conformity with the regulations provided by law as to copyright of prints," artistic prints which describe the article of manufacture to which it refers or is to be attached. Because these registrations were made in accordance with the copyright law they were, by the Patent Office, designated "copyrights," although such designation was probably in a technical sense erroneous, as the act of 1874 expressly provided that such prints or labels should not "be entered under the copyright law," the sole distinction as to them being that they should be entered in conformity with the copyright law.

But the nomenclature of the right conferred by the registration of such prints can make no difference, as it is clear that the Register of Copyrights had nothing to do with such prints; that all proceedings relating thereto were conducted in the Patent Office, and that the law under which they were entered was a part of the laws under which that office was operated.

On May 9, 1902 (32 Stat., 193), Congress passed an act by which section 4929, Revised Statutes, was amended so as to read:

Any person who has invented any new, original, and ornamental design for an article of manufacture, not known or used by others in this country before his invention thereof, and not patented or described in any printed publication in this or any foreign country before his invention thereof, or more than two years prior to his application, and not in public use or on sale in this country for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law and other due proceedings had, the same as in cases of inventions or discoveries covered by section forty-eight hundred and eighty-six, obtain a patent therefor.

As I understand, the Patent Office construed this amendment to apply solely to the second class of patents above described, and held that it did not affect the registration in that office of artistic prints to be placed on articles of manufacture. This construction was, in my opinion, correct, inasmuch as the act of July 18, 1874, was not incorporated in the Revised Statutes, they being only a codification of the laws enacted on or before December 1, 1873 (sec. 5601), and consequently said act of 1874 was not repealed by the amendment of May 9,

1902.

With this law in this condition, the act of March 4, 1909 (35 Stat., 1075), entitled "An act to amend and consolidate the acts respecting

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