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We submit that if “notice” is to be a requirement, we are entitled to ask that such requirement be made as little burdensome as possible. When an unmarked work escapes through our fault, we concede that an innocent infringer should not suffer, but we earnestly submit that it is most unjust that this should allow a willful pirate who has notice of the copyright to injure the property with impunity.
Some of the very interests who are most tenacious about notice are the very ones whom it is most difficult to make imprint notice when they buy reproduction rights from us. There are cases without number where they agree to imprint the notice required by law, and on their reproduction they either omit it altogether or mutilate it by leaving out the date so that it will not comply with the law.
SECTION. 23.-Protection of copyright.
The statutory damages provided by this section for infringements of reproductions of works of art reduce the maximum from $10,000 to $5,000. Under the present law it is notorious that there are no effective remedies for piracy in 90 per cent of the cases that arise. In our own domain recoveries are so rare that general contempt of the law exists. In infringements of artistic property considerable has been said about the enormous damages to which an infringer is liable. As a matter of fact, we know of only one case in which a print publisher has ever been awarded the maximum, and he has yet to collect it from the defendant, while we do kņow by personal experience of hundreds of cases which have not been prosecuted because of the inefficiency of the law. The impunity with which the present law can be violated has encouraged infringements in this country to such an extent that many of the infringers have come to look upon their appropriations as vested rights. Naturally they are disturbed when effective remedies are proposed.
Nor should we leave this section without suggesting a most important point. The very nature of copyright property is such that many cases arise in which it is impossible to adequately measure the damages. If the infringement occurs in a composite work, to which there are other contributing factors, the impossibility of clearly dividing the results from each component part is obvious. The difficulty of proving with definiteness actual pecuniary damages sustained has been recognized and Congress has frequently provided statutory rates of compensation. This has been approved by the Supreme Court. (See Brady v. Daly, 175 U. S., 148.)
The civil remedies provided are only such as the nature of the property requires. There is no innovation on existing law. The recovery of damages and profits has been severely criticised as unprecedented, but a like provision has existed in the patent law for many years (Rev. Stat., sec. 4921) and has also been incorporated into the trade-mark law (33 Stat., 274.) The provision that the infringer must prove his cost is only a sensible application of the best evidence” rule.
We protest against any definition of either the word “publication
or the phrase “ date of publication” which might render a work of art published before any authorized vending or public distribution of copies of the work. Exhibition should not be construed as publication. Paintings are frequently exhibited in galleries and elsewhere before arrangements can be made for copying them. The United States court of appeals, even under the present law, has decided that exhibition is not necessarily publication. The only safe point of demarcation for the date of publication is the date upon which authorized vending or public distribution of the copies commences. Any other rule produces injustice and confusion. If publication commences before the date specified in the bill, then artists will be compelled to copyright their works before daring to show them to the public in any way. Such a condition would, as it sometimes does now, cause the loss of the copyright.
We have not gone into full detail of the reasons for maintaining these sections intact, but if necessary, we will gladly furnish a memorandum of such reasons, reenforced by practical examples and court decisions. Respectfully submitted.
PRINT PUBLISHERS' ASSOCIATION OF AMERICA.
BENJAMIN CURTIS, Secretary.
COPYRIGHT FOLLOWS AND PROTECTS EVERY REPRODUCTION OF THE ORIGINAL.
As there are conflicting opinions on this point, it is necessary to plainly affirm this principle in the law.
The owner of a copyrighted painting by publishing lithographic copies thereof
does not lose the right to restrain others from copying these copies. (Syl
labus.) “Although the precise question here involved does not seem to have been the subject of judicial decision, it is thought that unless the intent and purpose of the statute are to be rendered nugatory, but one answer is possible.”
“ The complainants' copies have the notice required by law printed thereon. It would be a strained construction to hold that the statute only protected the sale of copies made in precisely the same manner as the original. It will hardly do to say that a water color is not infringed by an oil or a crayon or a lithographic facsimile. The statute is not so technical. Its design is to give substantial and not merely a fanciful protection. If the contention of the defendants is well founded, the complainants gained nothing by their copyright. The moment they sought to avail themselves of the advantages of the statute by the sale of copies, that moment they lost the only right which was of value. It was abandoned to the public. Thus construed, the law becomes a mere abstraction, affording in cases like this no protection whatever. It by no means follows from the fact that the law recognizes a distinction between a painting and a print that a copyright for the former will not protect its owner in the sale of copies thereof even though they may appropriately be called prints. It is clear that the defendants are wrongdoers. They have invaded the complainants' territory. They have copied the painting. It is immaterial how this was accomplished, whether directly or indirectly. They have copied a lithograph which was protected by the complainants' copyright, and have thus attempted unlawfully and without due recompense to reap the fruits of the complainants' genius and enterprise."
This is in accord with Lucas v. Williams (2 Q. B., 113). Champney v. Haag (121 Fed., 944) holds to the contrary.
RECOVERY OF PROFITS AND DAMAGES IS NOT AN INNOVATION.
Revised Statutes,' section 4921 (as amended 1897):.
“Power of courts to grant injunctions and estimate damages. The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity to prevent the violation of any right secured by patent on such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby; and the court shall assess the same or cause the same to be assessed under its direction. And the court shall have the same power to increase such damages in its discretion as is given to increase the damages found by verdicts in actions in the nature of actions of trespass upon the case. But in any suit or action brought for the infringement of any patent there shall be no recovery of profits or damages for any infringement committed more than six years before the filing of the bill of complaint or the issuing of the writ in such suit or action, and this provision shall apply to existing causes of action.”
4 Sutherland on Damages (section 1189):
“As has been stated, the present patent law gives to the successful plaintiff in an equity suit for an infringement the damages which he has sustained in addition to the profits to be accounted for by the defendant. As interpreted, this statute does not in every case entitle the plaintiff to such damages, but only when they are necessary to give him adequate compensation. If it appears that the injuries which he sustained are greater than the gains and profits realized by the defendants, the plaintiff is entitled to recover compensation in the form of damages for the excess of the injuries sustained beyond the gains and profits received by the defendant."
Coupe v. Royer (155 U. S., 565):
* The measure of recovery in a suit in equity for such infringement (of patent) is the gains and profits made by the infringer, and such further damage as the proof shows that the complainant sustained in addition to such gains and profits.”
STATUTORY DAMAGES ARE LEGAL AND APPROVED BY THE COURTS.
Brady v. Daly, 175 U. S., 148, is a very recent decision of the Supreme Court enforcing the statutory damages of the dramatic section (4966) and discussing such damages historically and on their merits. We quote from the opinion (at 154) :
“The idea of the punishment of the wrongdoer is not so much suggested by the language used in the statute as is a desire to provide for the recovery by the proprietor of full compensation from the wrongdoer for the damages such proprietor has sustained from the wrongful act of the latter. In the face of the difficulty of determining the amount of such damage in all cases, the statute provides a minimum sum for a recovery in any case leaving it open for a larger recovery upon proof of greater damage in those cases where such proof can be made. The statute itself does not speak of punishment or penalties, but refers entirely to damages suffered by the wrongful act. The person wrongfully performing or representing a dramatic composition is, in the words of the statute,‘liable for damages therefor.' This means all the damages that are the direct result of his wrongful act. The further provision in the statute, that those damages shall be at least a certain sum named in the statute itself, does not change the character of the statute and render it a penal instead of a remedial one. The whole recovery is given to the proprietor, and the statute does not provide for a recovery by any other person in case the proprietor himself neglects to sue. It has nothing in the nature of a qui tam action about it, and we think it provides for the recovery. of neither a penalty nor a forfeiture.”
SUCH DAMAGES ARE ENFORCED WHEN PLAINLY PROVIDED BY LAW.
Bolles v. Outing Co., 175 U. S., 262, contains language which is very suggestive under the present circumstances: The court is discussing section 4965 of the present law (at 265):
“ The statute, then, being penal, must be construed with such strictness as to carefully safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature. If the language be plain, it will be construed as it reads and the words of the statute given their full meaning; if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial. In both cases it will endeavor to effect substantial justice.
“ Had Congress designed the extended meaning claimed for these words found in his possession' it would naturally have used the expression ‘found or traced to his possession' or found to be or to have been in his possession.' It is only by interpolating words of this purport that the statute can receive the construction claimed.”
Litho. Co. v. Werckmeister (C. C. A. 2d), 146 Fed., 377, illustrates the difference under the present law between recovery for infringement of a book or photograph and of a painting and shows how exactly the courts will follow the precise language of an act of Congress.
“The complainant alleges a sale of 30,100 copies of the copyrighted painting. None of these were found in the possession of defendant at the time of beginning action, under any process or otherwise, Defendant insists that for that reason the plaintiff failed to show facts sufficient to sustain recovery Reliance is had on the decisions in Thornton v. Schreiber, 124 U. S., 612, and Bolles v. Outing Co., 175 U. S., 262. In both those cases the copyrighted article
a photograph. Defendant's counsel suggests that there is no reason apparent why there should be one measure of damages in the case of a book or photograph and another in the case of a painting but it is a sufficient answer to such suggestion to note that the statute makes just such a distinction. In the case of a book or photograph the offending person shall forfeit ‘one dollar for every sheet found in his possession, either printing, printed, copied, published, imported, or exposed for sale.' In the case of a painting
he shall forfeit ‘for every copy of the same in his possession, or by him sold or exposed for sale.' In the one case it will be noted that there is to be no penalty for any copy “sold;' in the other case a penalty for every copy' by him sold' is to be exacted. The structure of the sentence is conformed to this distinction. In the earlier quotation the words 'found in his possession' qualify every subsequent word in the clause; in the latter quotation the words ' in his possession' are cut off from the next succeeding words 'by him sold' by the use of the word 'or.' It is not necessary to inquire why this distinction is made; it is sufficient to say that it is made, in language so plain that to eliminate it would be judicial legislation."
EXHIBITION IS NOT NECESSARILY PUBLICATION.
It is essential to have a clearly defined and easily applied rule to determine “date of publication” of works of art.
Werckmeister v. Company, 134 Fed., 321 :
(323) “A copyright is an incorporeal right to print and publish. This property is a different and independent right from the corporeal property out of which it arises.
(324) “Publication of a subject of copyright is effected by its communication or dedication to the public. Such a publication is what is known as a 'general publication. There may be also a limited publication. The use of the word publication' in these two senses is unfortunate and has led to much confusion. A limited publication of a subject of copyright is one which communicates a knowledge of its contents under conditions expressly or impliedly precluding its dedication to the public
(326) “It is not perceived how the legal status of a right of copyright in a painting or statue, so far as concerns their publication, can be distinguished from that of lectures or dramatic compositions. In fact, such distinctions as may be suggested only serve to strengthen the presumption of limited publication in favor of the work of art. There the author may wish to enjoy the profit from exhibition of the original and from the right to publish copies, but his chief object often is to secure the profit arising from the sale of the original work. The exhibition of a work of art for the purpose of securing a purchaser or an offer to sell does not adversely affect the right of copyright, and from the fact that the right protected by statute in a work of art is that of copying and not of exhibiting is derived the general rule that the mere exhibition thereof is not a general publication. (Drone on Copyright, 287.) There may be a sale of the subject of copyright separate and distinct from the sale of the copyright therein. (Stevens V. Cady, 14 How., 528.) In a limited exhibition, as of a play, there is no dedication to the public, no presumption or recognition of a right to copy, and therefore no abandonment of said right.”
[Memorandum B.) Suggested amendments to bills S. 6330, H. R. 19583, by the Print Publishers'
Association of America.
At the end of this section add, “The copyright upon composite works shall give to the proprietor thereof all the rights and privileges in respect thereto which he would have if each subject were individually copyrighted under this act."
At the end of line 20 of the Senate bill, after the words "best edition,” add the words then published.” This will make the required deposit “two complete copies of the best edition then published.”
SECTIONS 21 AND 22.
In the first line of each section, before the word “consent," insert the word “written,” and in the second line of each section cut out the words “ author or.”
In line 5 insert, before the word distribution " the word “public.” In line 7 add after the word “sale” the words “or publicly distributed.”
THE PRINT PUBLISHERS' ASSOCIATION OF AMERICA,
Detroit, Mich., December 15, 1906. Dr. HERBERT PUTNAM,
Librarian of Congress, Washington, D. C. DEAR SIR: We understand an amendment to section 13 of the proposed copyright bill will be handed in by the Typographical Union for the purpose of extending the requirements of American manufacture to other component parts of the book than that of the text. Without seeing such amendment, we of course can not judge of its scope, but we feel it necessary to protest against any extension of the manufacturing clause which would carry its restrictions beyond the text of the book, and which is already covered by section 13.
We have shown how certain kinds of photographs can not be made within the limits of the United States because the objects to be photographed are not contained within the country. The base of every photogravure which is manufactured, whether it be a gelatin or a copper plate gravure, is a photographic negative. Equally, therefore, a gravure which is intended to reproduce paintings abroad or foreign architecture or foreign scenes can not be wholly manufactured within the limits of the United States. The original photographic negative from which the work is started must be taken where the object is. If the requirement of complete American manufacture for ali the contents of the book is imposed, copyright would be denied to books containing reproductions of this kind.
Copies of original works of art can only be made successfully where the original is. The services of certain etchers or engravers, which the American public wish, can only be obtained abroad. Sometimes these people are specialists in their particular line and the only ones from which that particular form of expression can be obtained. If the manufacturing restriction were extended to include all the illustrative plates of the book as well as the text plates, then the inclusion of a single plate made abroad by such a specialist would deny American copyright to the whole book, even though all the other parts were made within the limits of the United States. The inclusion of a mezzotint or an etching by a famous foreign artist would be fatal. Are all American books to be limited to American art only any more than all American musicians are to be limited to American music?
The effect of the extension of this manufacturing restriction into the fieids of art reproduction instead of giving increased protection to the American manufacturer in the majority of cases would have a contrary effect, and it could not fail to greatly restrict the fields in which American houses would publish. We are speaking as manufacturers as well as publishers, and we consider any such extensions as detrimental to our interests. Copyright protection in England to American-made art reproductions is becoming increasingly desirable and is a protection we are now denied. The extension of the manufacturing restriction to such productions would be certain to interfere with our getting the relief and protection we desire in that country.
If such amendment is filed, therefore, we respectfully request that this protest against its adoption be included in the record. Very respectfully,
THE PRINT PUBLISHERS' ASSOCIATION OF AMERICA.
DETROIT PUBLISHING COMPANY,
Detroit, Mich., December 15, 1906. Dr. HERBERT PUTNAM,
Librarian of Congress, Washington, D. C. DEAR SIR: I have just received a copy of the letter of the American Newspaper Publishers' Association protesting against the proposed copyright bill in certain particulars. I inclose herewith a letter to the Joint Committee on Patents in reply to such protest by the newspaper publishers. As their protest is to be included in the printed record, we respectfully request inclusion of our reply in the record also, that their communication may not appear