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VI

SUBJECT-MATTER OF COPYRIGHT: WHAT MAY BE

COPYRIGHTED

The subject-matter of copyright should include, in Subject-matthe nature of things, those products of invention, ter in general creations of the human brain, which are realized and utilized immaterially through material records, and not, as in the case of patents, materially through the material itself. Copyrightable works, in brief, are those which appeal from the imagination to the imagination, or in which intellectual labor combines immaterial product into new form. What may be copyrighted specifically and practically depends, under present conditions of law, upon the statutory provisions, national or international, of the several nations of the world.

The new American code gives the following classi- Classificafication of copyrightable works:

“(Sec. 5.) That the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs:

“(a) Books, including composite and cyclopædic works, directories, gazetteers, and other compilations;

(b) Periodicals, including newspapers;

"(c) Lectures, sermons, addresses, prepared for oral delivery;

“(d) Dramatic or dramatico-musical compositions;
“(e) Musical compositions;
(f) Maps;

(g) Works of art; models or designs for works of art;

tion

Prints and labels excluded

All the writings of an author

“(h) Reproductions of a work of art;

"(i) Drawings or plastic works of a scientific or technical character;

“(j) Photographs;
“(k) Prints and pictorial illustrations:

Provided, nevertheless, That the above specifications shall not be held to limit the subject matter of copyright as defined in section four of this Act, nor shall any error in classification invalidate or impair the copyright protection secured under this Act."

Prints or labels “not connected with the fine arts," but "designed to be used for any other articles of manufacture," are subject only to registration in the Patent Office in accordance with the act of June 18, 1874.

It is enacted (sec. 4): “That the works for which copyright may be secured under this Act shall include all the writings of an author," thus linking the phraseology of the law with the provision in the Constitution of the United States in which the word "writings" is used, with the effect of construing that word by the classification above cited.

It is also enacted (sec. 3): “That the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act."

It is also enacted (sec. 6): “That compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain, or of copyrighted works when pro

Component parts

Compilations, new editions, etc.

duced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works."

The provisions of the law regarding the subject- Non-copymatter of copyright are completed by the negative rightable

works provision:

“(Sec. 7.) That no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof: Provided, however, That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor.”

It is not to be inferred from the provision as to Government Government publications, that the United States use has itself a right to use copyright material without consent of the copyright proprietor. The sovereignty of the nation is not to transgress the rights of private property, unless in the necessary exercise of war or police powers, as the sovereign state cannot take land over which it is theoretically sovereign from a private

tions

owner except for public purposes and then only by condemnation proceedings at law and with fair remuneration to the proprietor. No right of eminent domain in respect to copyrights is asserted by the United States, and the provision means only that material, otherwise copyrightable, furnished by a public officer or otherwise to the Government, becoming the property of the Government, is put freely

at the service of the people. Author" The constitutional provision is thus given the and "writ

broadest interpretation in the act. In the narrow ing' defini

sense the dictionaries define "author" as “one who composes or writes a book(Webster), and “writing" variously as a record made by hand," "a production of the pen," "any expression of thought in visible words” (Century); "anything expressed in letters" (Webster, Stormonth, Standard); "a written paper," "a legal instrument” (Johnson); "a literary production" (Chambers); “forming by the hand letters or characters on paper or other suitable substance" (Bouvier's Law Dictionary); “words made legible by any device," "a document, whether manuscript or printed, as opposed to mere spoken words” (Rapalje and Lawrence, Law Dict.); “expression of ideas by visible letters" (Anderson's Dict. of Law). For years Massachusetts voters cast a handwriting ballot, until the courts held that a printed ballot fulfilled the "written ballot” requirement of the Massachusetts constitution. But in the wider sense an author is "a creator, an originator" (Webster, Standard), and a

writing is the record or expression of a thought or idea. Interpreta- Congress, upheld by the courts, had specifically tion by con- included (law of 1870) under “writings” in the Contors are not"inventors" making “discoveries,” they could not be protected at all; and in other countries protection has been extended to oral delivery of an address presumably but not necessarily written. It might be claimed, under a restrictive interpretation of the Constitution, that only works specifically relating to “ science and useful arts” might be protected, although literature and the fine arts are admittedly especial subjects of copyright. While it is for the judiciary and not for the legislature to construe or interpret the Constitution, the right of Congress to pass laws based upon its understanding of the Constitution, subject to the final decision of the federal courts, has not been challenged. And the code of 1909 by its classification (sec. 5) and its inclusive clause (sec. 4) is most comprehensive in this respect.

stitution a "statue," " statuary, " "model," without requiring the artist to make a preliminary sketch (if that be specifically a writing) otherwise, as sculp

gress and

courts

The U.S. Supreme Court, in 1884, in the decision of Supreme Burrow-Giles Lith. Co. v. Sarony, extending the prin- Court deci

sions ciples of the copyright act to cover photographs, said through Justice Miller: “By 'writings' is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writings, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list of 1802 is probably that they did not exist, as photography as an art was then unknown." It seems evident that the phrase "visible expression" as used in this decision was intended to give a broad definition and not to narrow the definition by the exclusion, for instance, of “audible expression,” as otherwise the performance of a drama or of a musical composition could not be included under copyright protection. This view is confirmed by the later decision of the same court, in 1899, in Holmes v. Hurst: "It is the intellectual pro

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