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vide that copies imported with the copyright proprietor's assent shall be seized and destroyed by the government, while copies imported without the copyright proprietor's consent, being forfeited under the law to such proprietor, must be held by the customs authorities pending suit for forfeiture by the copyright owner or his abandonment of his right to such copies. Duties collected on books thus unlawfully imported are not refunded.
In relation especially to questions of importation, Supersedure and in general, it is of first importance to note that of previous
provisions the present code superseded by repeal, from July 1, 1909, all conflicting provisions, which practically means all previous copyright legislation, and that except as to infringement cases actionable at that date, the present code is the only copyright law.
The provision to this effect is (sec. 63): “That all laws or parts of laws in conflict with the provisions of this Act are hereby repealed, but nothing in this Act shall affect causes of action for infringement of copyright heretofore committed now pending in courts of the United States, or which may hereafter be instituted; but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law.”
This principle as construed by the Treasury Depart- Manufacturment (Treas. dec. no. 30316) especially affects copies ing clause afwhose status has been changed by the new form of the fects earlier
copyrights manufacturing proviso (sec. 15). A modification adds the condition that books must be printed from plates made from type set within the United States and printed and bound in this country. The Treasury Department has held in the case of an American edition of the “Key of Heaven” copyrighted under the law of 1891, by Benziger Brothers, of which sheets were sent abroad for binding, that the edition as
bound abroad cannot be re-imported into the United States, although the sheets were manufactured here under the provisions of the law of 1891, previous to July 1, 1909. These books were accordingly denied importation and had to be returned to the country whence they were exported as bound. The opinion of Attorney-General Wickersham of November 17, 1909, on which the Treasury ruling was based, says:
“This language (of sec. 31) 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."
Where a work in a foreign language is copyrighted in the United States, it was held by the Secretary of the Treasury (Treas. dec. no. 22751) in 1901, on advice of the Attorney-General, under the act of 1891, in the case of Rostand's “L'Aiglon," that the original French edition must be denied importation under the prohibition feature of the manufacturing clause; but, as under the new code of 1909, “the original text of a work of foreign origin in a language
Importation of foreign texts
other than English,” is excepted from the manufacturing clause, it follows that such original text cannot be denied importation on copyright grounds, though importation might be restrained as a matter of equity by an assignee who had bought for the American market the right to publish here. In the case, however, of Liddel and Scott's Greek-English Lexicon, of which an American edition was copyrighted previous to the law of 1891, on a question raised by the American Book Co., the Secretary of the Treasury held in 1901 (Treas. dec. no. 22781) that the English edition could not be denied importation, as the law previous to 1891 did not contain the prohibition incident to the manufacturing clause. The Attorney-General in this case considered that while the clause against importation, being remedial, might affect prior copyright, yet as it particularly applied to books "so copyrighted” as not to be imported during the existence of “such copyright," it should be inferred that only books copyrighted under that act should be denied importation - the law in general being prospective in its effect. These two earlier opinions were taken into consideration in the opinion in 1909 by Attorney-General Wickersham, who held that the language of the new code did not warrant the same construction.
Under the law of 1891, the Secretary of the Treas- Printing ury held in 1903 (Treas. dec. no. 24742) that books within printed abroad from type set or plates made within country the United States could not be prohibited importation under the manufacturing clause; but the clause has been so amended in the code of 1909 that printing in this country from type set within the United States or from plates made within the country from type thus set, is required as a condition of copyright, and copyright does not hold if any of these three con
ditions be neglected. It follows that in the case of books so copyrighted and manufactured, any other
edition must be prohibited importation. Innocent An English decision holds that an importer is not importation innocent because he does not know that an importa
tion includes copyright matter; and the wording of our law implies the same, though an American decision held that a partner or employer is not chargeable with statute penalties for acts done without
his knowledge by a partner or agent. Books not An indirect and significant effect of the manufacclaiming
turing proviso, in the nature of a “boomerang" to copyright
American industries, is to prevent the copyrighting of works which might otherwise be partly manufactured in America. Thus the American versions of the Book of Common Prayer and of Church Hymnals no longer seek American copyright, because the thin paper editions, as on “Oxford paper," are necessarily printed abroad and could not be imported if there were copyright on other editions which might be made in America. Baedeker's “United States," though dealing exclusively with and chiefly sold in this country, is not copyrighted, being protected rather by the cost of reproducing its German-made maps and text, and by its repute as a guide-book and characteristic form, which might under the doctrine of "fair use" give its American publishers some com
mon law protection against imitators. Periodicals The code of 1909 permits the importation of perimay be im- odicals containing copyright matter authorized by ported
the copyright proprietor, though not manufactured in
the United States, but this permissive exception does Composite not extend to composite books; and under the law of books not
1891 the Treasury Department held that in the case admitted
of a book of poems, some of which were copyrighted in the United States, the book could not be imported
unless the parts containing copyrighted poems had been printed from type set within the United States. Under this ruling, applied to the present law, foreignmade copies of books containing American copyrighted poems or other articles, must be denied importation, because these copyrighted portions were not type-set, printed and bound in this country. It is possible, however, that under the rule "de minimis non curat lex," a court might not justify the prohibition of books incidentally containing in small proportion poems, extracts or other negligible items of American copyright. Thus if an English cyclopædia contained copyrighted contributions by Amercan authors, such cyclopædia would be denied admission unless such contributions might be adjudged a negligible proportion of the work.
The prohibition of importation under the manu- Rebinding facturing proviso of copyrighted books not bound in abroad this country, has been construed by the AttorneyGeneral, in an opinion of March 1, 1910 (given in Treas. dec. no. 30414), to refer to original bindings and not to rebindings. “Manifestly a book is produced within the meaning of section 31 when it is printed and bound; and the binding required to be done in the United States is the original binding, the one which enters into the original production of the book. When the manufacture of the book is thus completed it is entitled to all the protection offered by the copyright laws, and it may be exported and thereafter imported at the pleasure of the owner. There is, furthermore, nothing in the act to indicate any intention that a book may be deprived of this protection or right of importation when it has once been acquired. If it shall become necessary or proper that the book be rebound it is not thereby made a new book, but remains the same book, the one that