again recorded, and a copy of the work delivered to the clerk of the district, and the entry of the record noticed as aforesaid at the beginning of the work; and all these regulations must be complied with within six months before the expiration of the first term. And in addition to these regulations, the author or proprietor must, within two months from the date of the renewal, cause a copy of the record thereof to be published in one or more of the public newspapers printed in the United States for the space of four weeks. (a)

* It was for some time the prevailing and better opinion in * 375 England, that authors had an exclusive copyright at common law, as permanent as the property of an estate; and that the statute of 8 Anne, ch. 10, protecting by penalties that right for fourteen years, was only an additional sanction, and made in affirmance of the common law. This point came at last to be questioned; and it became the subject of a very serious litigation in the court of K. B. It was debated at the bar and upon the bench, with great exertion of the talent, and a very extensive erudition and skill in jurisprudence. It was decided that every author had a commonlaw right in perpetuity, independent of statute, to the exclusive printing and publishing his original compositions. (a) The court were not unanimous; and a subsequent decision of the House of Lords, in Donaldson v. Becket, in February, 1774, settled this very litigated question against the opinion of the K. B., by establishing that the common-law right of action (if any existed) could not be exercised beyond the time limited by the statute of Anne. (b)

The Act of Congress is declared not to extend to prohibit the importation, or vending, printing, or publishing, within the United States, any map, chart, or book, musical composition, print, or engraving, written, composed, or made by any person not a citizen of the United States, nor resident within the jurisdiction thereof.1

(a) Act of Congress, February 3d, 1821, ch. 16. The rights of authors in the printing, publishing, profits, and sale of their works, published prior to the date of this statute, depended upon the Acts of Congress of 1790 and 1802; and for the protection of copyright under those statutes, see post, p. 376, note a, the case of Wheaton v. Peters. See Dwight v. Appleton, N. Y. Legal Observer, vol. i. 195, on the valid security of a copyright.

(a) Miller v. Taylor, 4 Burr. 2303.

(b) Donaldsons v. Becket, cited in 4 Burr. 2408. 7 Bro. P. C. 88, S. C., Beckford v. Hood, 7 Term Rep. 620.

1 It has been decided that a purchaser at a sheriff's sale of a copperplate, on which a map

The statute of Anne had a provision against the scarcity of editions and exorbitancy of price. The Act of Congress has no such provision; and it leaves authors to regulate, in their discretion, the number and price of their books, calculating (and probably very correctly) that the interest an author has in a rapid and extensive sale of his work will be sufficient to keep the price reasonable, and the market well supplied. (c) The Act of Con

gress, though taken generally from the provisions in the *376 statutes of 3 Anne, ch. 19, varies from *it in several respects. The statute of Anne did not discriminate, as the Act of Congress does, between natives and foreigners, or require any previous residence of the latter, but granted the privilege of copyright to every author of any book. (a) The statute of Anne renewed the copyright at the expiration of the fourteen years, if the author was then living, for another term of fourteen years, without any reëntry and republication, as is required with us. In one respect, authors with us are exempted from an exceedingly onerous burden imposed upon them by the statute of Anne. (b) That statute required not only the title of the book to be entered at Stationers' Hall, but nine copies to be deposited there for the use of the libraries of the two universities and other libraries; and the statute of 54 Geo. III. enlarged the number to eleven copies,

(c) When the copyright, or the exclusive privilege of printing and selling books for a limited period was introduced in Spain, under Isabella, it was granted, says Mr. Prescott, (Hist. of Ferdinand and Isabella, vol. ii. p. 207,) in consideration of the grantee selling at a reasonable rate; and foreign books of every description were allowed to be imported into the kingdom free of all duty whatever.

(a) See D'Almaine v. Boosey, 1 Younge & Coll. 288.

(b) The exemption of American authors, mentioned in the text, no longer exists. By an Act of Congress passed August 10th, 1846, ch. 178, sec. 10, it is provided "that the author or proprietor of any book, &c., for which a copyright shall be secured, &c., shall, within three months from the publication of said books, &c., deliver, or cause to be delivered, one copy of the same to the librarian of the Smithsonian Institution, and one copy to the librarian of Congress Library, for the use of said libraries." 1

was engraved, does not acquire the right to take impressions therefrom and sell them. Stevens v. Cady, 14 How. U. S. 528. Same v. Gladding, 17 How. U. S. 447. Wood engravings, printed, or illustrations of a book, are protected. Bogue v. Houlston, 10 E. L. & Eq. 215.

In Jollie v. Jaques, (S. Dist. of N. York,) it was held that the delivery of copies to the two librarians was not a prerequisite to the title to a copyright. 1 Blatchf. C. C. 618. The law imposing the obligation mentioned in the note was repealed in 1859. 11 Stat. at Large, 380, sec. 6.

by requiring two copies for libraries in the city of Dublin. (c) In the case of splendid and expensive publications, supporting only a few copies, this requisition is a very heavy tax upon the author. The statute of 8 Geo. II. ch. 13, securing the privilege of copyright for twenty-eight years to the inventors of prints and engravings, did not require the deposit of any copies for public uses; whereas the Act of Congress requires the like entry, publication, and deposit in the case of historical and other prints, as in the case of books. The statute of 54 Geo. III. ch. 156, greatly improved upon the statute of Anne, and gave to the author at once the full term of twenty-eight years; and if he be living at the end of that period, then for the residue of his life. The statute of 5 and 6 Vict. ch. 45, provided still more amply in favor of authors, by declaring that every book published in the lifetime of its author shall endure for his natural life, and seven years longer; and if the seven years shall expire before the end of forty-two years from the first publication, the copyright shall endure for such period of forty-two years. (d)

(c) A statute of Wm. IV. repealed this part of the former Act, and reduced the number of deposited copies to five. The law of copyright was again amended by the act of 5 and 6 Vict. ch. 45; and by a clause in the Acts of 8 and 9 Vict. ch. 93, the absolute prohibition of foreign reprints of copyright books is extended to the British colonial possessions.

(d) Under the English statute of 54 Geo. III., the omission to enter the work at Stationers' Hall deprived the author of the penalties given to him for breach of the copyright, and subjected him to certain small forfeitures; and his exclusive copyright still existed, and he might sue for damages on the violation of it. Beckford v. Hood, 7 Term Rep. 620. Stat. 5 and 6 Vict. ch. 45, S. P.2 The Act of Congress is not susceptible of that construction, though the omission to deposit a copy of the book in the clerk's office, under the Act of Congress of 1831, does not deprive the author of his vested copyright, nor of his remedies under the statute. That provision is merely directory. It has been decided in a case of copyright, under the Act of Congress of 1790, that after depositing the title of the book in the clerk's office, the exclusive right was vested, and that the publication of the title, and the deposit of a copy of the book in the secretary's office, were acts merely directory, and constituted no part of the essential requisites for securing the copyright. Nichols v. Ruggles, 3 Day, 145. But under the Act of 1802, the publication was held to be essential. Ewer v. Coxe, 4 Wash. C. C. 487. And in Wheaton v. Peters, 8 Peters U. S. 591, the question of copyright was discussed by counsel with great learning and ability, and a majority of the Supreme Court held, that an author had no common-law copyright in his published works; that if such a common-law right ever existed in England, yet there was no common law of the United States on the subject, and there was no evidence or presumption that any such common-law right had

* Lover v. Davidson, 38 Eng. L. & Eq. 180. Chappell v. Davidson, 36 Eng. L. & Eq. 321.

* 377

*The cognizance of cases arising under the Act of Congress securing to authors the copyright of their productions,

ever been introduced or adopted in Pennsylvania, where the controversy in that case arose; and that, as in England, since the statute of 8 Anne, an author's exclusive right of literary property in his published works was confined to the period limited by the statute, so in that case the author's right depended upon the Acts of Congress of 1790 and 1802. It was further held, that the requirements in the Act of 1790, as explained and amended by the Act of 1802, to deposit a copy of the title in the clerk's office, and to insert a copy of that record in the title-page of the work, or in the succeeding page, and to publish the same for four weeks in a newspaper, and to deposit a copy of the work, within six months, in the office of the secretary of state, were all acts essential to the title, and necessary to be performed, to enable the author to claim the protection and benefit of those statutes. The court likewise declared that no reporter had or could have any copyright in the written opinions delivered by the judges of that court. The minority of the court held, that authors had a common-law right in their works, which existed independent of the Acts of Congress, and under the common law of the several states; and that the statute right and remedy vested upon recording the titlepage of the book, and inserting a copy of the Act in the page next to the title-page; and that the subsequent notice and deposit were merely directory, according to the decision in Nichols v. Ruggles.

M. Renouard, the author of a treatise on patents, as mentioned in a preceding note, has published a dissertation on the rights of authors, in which he contends that authors have not, upon just principles, any perpetual copyright, and are only entitled to the protection and remuneration which statute law affords. The substance of that dissertation is given in the American Jurist, No. 43, for October, 1839; and if the reason and policy upon which the opinion of M. Renouard is founded be not sufficient, we are, nevertheless satisfied that the protection of copyright in perpetuity, independent of statute provision, as was once contended for in the great case of Miller v. Taylor, is visionary and impracticable.

The French law of copyright is founded on the republican decree of July 19th, 1793, which gave to authors of writings of all kinds, composers of music, painters and engravers, a right for life in their works, and to their heirs for ten years after their deaths, with strong provisions against the invasion of such literary property. One copy was to be deposited in the national library. The imperial decree of the 5th February, 1810, made some modifications of that law, and gave the right to the author for life, and to his wife, if she survived, for life, and to their children for twenty years; and the right was secured by adequate civil penalties. A number of interesting questions have been discussed and decided in the French tribunals under the above law, and they are reported in the Répertoire de Jurisprudence, par Merlin, tit. Contrefaçon, sec. 1-15; and in his Questions de Droit, tit. Propriété Littéraire, secs. 1, 2. In the case of Masson & Besson v. Moutardier & Leclere, in the latter work, sec. 1, a new edition of the Dictionary of the French Academy, with colorable additions only, was adjudged to be a fraudulent violation of the copyright; and Merlin has preserved his elaborate and eloquent argument in support of literary property. In the case of Lahante & Bonnemaison v. Sieber, the question was concerning the rights of foreign authors; and it was decided and settled on appeal, in March, 1810, that the French assignee of a literary or musical work, not published abroad, acquired in France, after conforming to the usual terms of the French law, before any publication abroad, the exclusive copyright under the law of 1793. See Questions de Droit, tit. Propriété Littéraire, sec. 2. It is understood

belongs to the courts of the United States; but there

are no decisions in print on the subject, and we must re

*378

to be lawful to publish in France, without the permission of the author, a work already published in a foreign country. Répertoire, ub. sup. sec. 10. The French law is much more liberal in the protection of intellectual productions to authors and their heirs, than either the English or our American law; and it is a curious fact in the history of mankind, that the French national convention, in July, 1793, should have busied themselves with the project of a law of that kind, when the whole republic was at that time in the most violent convulsions, and the combined armies were invading France and besieging Valenciennes; when Paris was one scene of sedition, terror, proscription, imprisonment, and judicial massacre, under the forms of the revolutionary tribunal; when the convention had just been mutilated by its own denunciation and imprisonment of the deputies of the Gironde party, and the whole nation was preparing to rise in a mass to expel the invaders. If the production of such a law, at such a crisis, be not resolvable into mere vanity and affectation, then, indeed, we may well say, with Mr. Hume, so inconsistent is human nature with itself, and so easy do gentle, pacific, and generous sentiments ally both with the most heroic courage and the fiercest barbarity!

There is a disposition in France to enlarge still further the term of an author's property in his works; and the commissioners appointed by the king to frame a new law on the subject, reported, in the summer of 1826, the draft of a law, in which they proposed to give to authors and artists of works of all kinds, property in their works for life, and to their legal representatives for fifty years from their deaths; and copyright in a work to be protected from piracy by representation, as well as piracy by publication. But it is understood that the French copyright still rests upon the provisions of 1810, and that the proposed modifications of 1826 did not pass into a law. In Prussia, by an ordinance of the king, in June, 1837, copyright endures for the life of the author, and to his heirs for thirty years after his death. The rapid and piratical reprint in Belgium of French books, as soon as they are out, and the consequent diffusion of them all over France, ruins the value of copyright in France. There is the same evil as respects French Switzerland. Copyright has a fair claim to international protection. In Germany, copyright is perpetual; but it cannot be of much value, for there is no one uniform Germanic legislation on the subject, to protect copyright among so many independent states, using a common language. It is said, however, that there is a reciprocal security of copyright by treaty between Prussia and Austria; and by the act of union of the Germanic confederacy of 1815, the diet was directed to make uniform decrees for the protection of copyright. By the Prussian ordinance of June, 1837, the copyright law of that kingdom applies generally to works published in foreign states, provided the copyright law of such state applies to and protects works published in the Prussian dominions. So, also, the English statute of 1 and 2 Victoria, ch. 59, secures to authors, in certain cases, the international copyright, by allowing the queen in council to grant to authors of books, which shall thereafter be published in any foreign country to be specified in the order, the privilege of copyright in the British dominions, for a term not exceeding that granted to British authors, upon entry and deposit of the work with the warehouse keeper of the company of stationers in London; the grant to be upon the condition that British authors have the like protection in the foreign country. The case of Germany shows how important it was in this country, that the law of copyright

1 In all such cases, an appeal or writ of error to the Supreme Court, without regard to the value in controversy, is given by the law of Feb. 18, 1861, ch. 37.