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XVI

IMPORTATION OF COPYRIGHTED WORKS

tion

Fundamen

exclusion

Copyright The right to import a copyrighted book and, conand importa- versely, the right to exclude importation are rights

incident to the general “exclusive right" of an author or copyright proprietor. This is recognized, in terms or inferentially, in the copyright law of most countries; and the American copyright code is exceptional and almost without precedent, save that of the preceding American law of 1891, in specifically permitting the importation of copyrighted books in stated cases, without the consent or authority of the copyright proprietor.

As Senator 0. H. Platt in the copyright debate of tal right of 1891 said: “The fundamental idea of a copyright is

the exclusive right to vend, and the prohibition against importation from a foreign nation is necessary to the enjoyment of that right. The privilege of controlling the market is indeed essential.” The copyright laws of foreign countries, and our own copyright legislation previous to 1891, carefully safeguard this right. When an author cannot assure to an American publisher the American market he cannot get from that publisher the price he would otherwise secure. In the" international copyright amendment" of 1891, Congress accompanied the manufacturing clause, which prohibited the importation of foreign copies even with the consent of the author, by a proviso permitting certain importations even without the consent of the author — on the homeopathic principle of off-setting one restriction upon authors' rights by another restriction upon authors' rights.

In general the law prohibits absolutely the im- General portation of “piratical copies"

piratical copies" or of works bearing prohibitions a false notice of United States copyright; it also prohibits, even though with consent of the author and the copyright proprietor, the importation in the case of works subject to the manufacturing clause, of any copies not manufactured in this country — but this prohibition does not apply to books in raised characters for use of the blind; to foreign-made periodicals containing authorized copyright matter; to authorized copies of a work in a foreign language of which only an English translation has been copyrighted here; or to authorized copies published abroad when imported under specified exceptional circumstances. These exceptions permit the importation of author- Exceptions ized copies for individual use and not for sale, not permitted more than one copy at a time (excepting a foreign reprint of a book by an American author); or by or for the United States; or by or for stated educational institutions, including libraries, not more than one copy at one time; or when parts of collections or libraries purchased and imported en bloc, or of personal baggage. Books imported under these exceptions cannot be adduced in defense of infringements, as the law specifically provides, e. g., as when such a book contains no proper United States copyright notice. Copies unlawfully imported may be seized and forfeited like other contraband importations under regulations of the United States Treasury, but it is provided that importations through the mails or otherwise may be returned to the country from which the importation is made on petition to the Secretary of the Treasury when there is no evidence of negligence or fraud. The Secretary of the Treasury and the Postmaster-General are jointly required to make regulations against unlawful importation through the mails.

These provisions, it may be noted, are a singular mixture, almost without precedent, of acceptance and denial of the “exclusive right” of the author or

copyright proprietor. Text pro

In respect to the importation of books in relation visions

with copyright, the provisions of the American code as to prohibition and limited permission are specific

and detailed, as follows: Prohibition

(Sec. 30.) That the importation into the United of piratical

States of any article bearing a false notice of copycopies

right when there is no existing copyright thereon in the United States, or of any piratical copies of any work copyrighted in the United States, is prohibited.

(Sec. 31.) 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, or any plates of the same not made from type set within the limits of the United States, or any copies thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in ac

cordance with the provisions of section fifteen of this Permitted Act, shall be, and is hereby, prohibited: Provided, importations however, That, except as regards piratical copies, such

prohibition shall not apply:

(a) To works in raised characters for the use of the blind;

“ (b) To a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor, unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization;

"(c) To the authorized edition of a book in a foreign language or languages of which only a translation into English has been copyrighted in this country;

“ (d) To any book published abroad with the authorization of the author or copyright proprietor when imported under the circumstances stated in one of the four subdivisions following, that is to say:

“First. When imported, not more than one copy at one time, for individual use and not for sale; but such privilege of importation shall not extend to a foreign reprint of a book by an American author copyrighted in the United States;

“Second. When imported by the authority or for the use of the United States;

“Third. When imported, for use and not for sale, Library not more than one copy of any such book in any one importations invoice, in good faith, by or for any society or institution incorporated for educational, literary, philosophical, scientific, or religious purposes, or for the encouragement of the fine arts, or for any college, academy, school, or seminary of learning, or for any State, school, college, university, or free public library in the United States;

“Fourth. When such books form parts of libraries or collections purchased en bloc for the use of societies, institutions, or libraries designated in the foregoing paragraph, or form parts of the libraries or personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That copies imported as above may not lawfully be used in any way to violate the rights of the proprietor of the American copyright or annul or limit the copyright protection secured by this Act, and such unlawful use shall be deemed an infringement of copyright.

"(Sec. 32.) That any and all articles prohibited

Seizuro importation by this Act which are brought into the

United States from any foreign country (except in the mails) shall be seized and forfeited by like proceedings as those provided by law for the seizure and condemnation of property imported into the United States in violation of the customs revenue laws. Such articles when forfeited shall be destroyed in

such manner as the Secretary of the Treasury or the Return of court, as the case may be, shall direct: Provided, howimportations ever, That all copies of authorized editions of copy

right books imported in the mails or otherwise in violation of the provisions of this Act may be exported and returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury, in a written application, that such impor

tation does not involve willful negligence or fraud. Rules

(Sec. 33.) That the Secretary of the Treasury against un- and the Postmaster-General are hereby empowered lawful importation

and required to make and enforce such joint rules and regulations as shall prevent the importation into the United States in the mails of articles prohibited importation by this Act, and may require notice to be given to the Treasury Department or Post-Office Department, as the case may be, by copyright proprietors or injured parties, of the actual or contemplated importation of articles prohibited importation by this Act, and which infringe the rights of such copyright proprietors or injured parties.'

Customs regulations as to importation of copyright articles and joint customs and postal regulations as to such importation through the mails, were issued under the law of 1909 under date of July 17, 1911, and are given in the appendix. As the copyright law forbids importation of copyright books not manufactured in this country, even with consent of the copyright proprietor, the customs regulations pro

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