"It will be observed that the determination of the specified conditions of the foreign laws and the proclamation of the President made with reference thereto does not create the right of foreign authors and proprietors to enjoy the rights and privileges of our copyright laws, but that such proclamation is only the evidence of the existence of the conditions under which those rights and privileges may be exercised. It is true that the absence of such proclamation is conclusive evidence that such rights do not exist, while, on the other hand, the proclamation is conclusive evidence that they do exist; but, nevertheless, the proclamation is not a condition precedent to the existence of the rights themselves. Therefore, there is no reason why such proclamation may not be retroactive in its effect; and, consequently, if a proclamation were made showing the determination of fact by the President that either of the conditions required in the statute have been complied with since a specified date, such proclamation would be conclusive evidence of that fact, and the citizens or subjects of such country would be entitled to avail themselves of our copyright laws from the date mentioned in the proclamation." Another careful consideration of the provisions of the act relating to this subject but confirms in my mind the view there expressed.

Germany having complied with one or more of the conditions set forth in section 8, subsection (b), on or before July 1, 1909, at any time thereafter and independent of the President's proclamation, a German citizen could acquire the rights declared by the act of March 3, 1909, by a compliance with its terms. It is true that, in the absence of the President's proclamation, he could not obtain a registration of his claim to copyright; but under this statute registration is not a necessary prerequisite to the existence of the rights and privileges of copyright, as they are vested by a compliance with the conditions of the statute by the author or composer.

Hence, I am of the opinion that where a German citizen complied with all the general provisions of the act at any time after July 1, 1909, there was vested in him the rights and privileges set forth in the act, except the right specified in section 1 (e) which will be hereinafter considered.

An important question, however, is whether, after the issuance of the proclamation on April 9, 1910, he acquired any remedy for an infringement upon his copyright between the dates mentioned. As above said, there can be no doubt that prior to the proclamation no action could be maintained for an infringement, because of the absence of the essential evidence to sustain such action. But it does not follow that when the evidence became available it could not be used to maintain an action brought to enforce a right which had previously existed. For illustration, it is familiar law that a deed, though inadmissible for the want of registration, may yet be registered and introduced as evidence to sustain an action brought before its registration.

A more difficult question, however, is whether an infringer would have an equitable defense to an action for infringement between the dates mentioned, on the ground that he did not possess at the time of the infringement any legitimate notice of the existence of the copyright.

Section 9 of the act requires that notice shall be affixed to each copy of the work or composition published, and prescribes precisely the character of such notice. The existence of this notice upon each copy certainly informs every person examining the same that the author or composer claims a right to a copyright therein, which embraces the claim that the country of which he is a citizen has complied with one or more of the reciprocal conditions specified in the law. Therefore, after such claim is made and notice thereof is given, it is not inequitable that anyone who shall undertake thereafter to infringe upon the rights of such author or composer, shall be required to do so at his own risk. It is practically impossible for the President to be informed whether the conditions required by the act have been complied with on the very day upon which the compliance is had. It must require some time, and often a considerable time, for the information to be transmitted through the proper channels and for the proclamation relating thereto to be prepared and published. Hence, when a copyright is claimed by an alien author or composer in strict accord with the provisions of the statute, everyone must be aware of the fact that the absence of the proclamation is not conclusive evidence that the reciprocal conditions have not been complied with by the country of such alien, and any infringement in the meantime is made subject to the knowledge that the President may determine by proclamation thereafter issued that compliance was had prior to the infringement.

I am of the opinion, therefore, that if a German citizen strictly complied with the provisions of the act at any time between July 1, 1909, and April 9, 1910, he is not only vested with a copyright in his work or composition, but that he may maintain an action for any infringement which occurred between said dates.

With reference to an infringement of the particular right specified in the proviso of section 1 (e) between September 9, 1910, and December 8, 1910, the same principle must apply; but it will be observed that the proclamation of the President does not recite that this condition had been met prior to the date of the proclamation; and therefore the proclamation would not afford evidence sufficient for the maintenance of an action for infringement between said dates. It is apparent, therefore, that when a proclamation is issued by the President, the precise date upon which the foreign country brought itself within the conditions of the act should be stated.

With reference to the fourth question, it is clear that the right specified in the proviso to section 1 (e) could not be acquired by any German citizen prior to September 9, 1910.

The reciprocal condition therein provided was a necessary prerequisite to the acquiring of the right mentioned. Previous to that date the condition of the German citizen, insofar as that particular right was concerned, was precisely the same is if the act did not exist.

MY DEAR MR. BRYLAWSKI: Referring to your letter of June 29, 1940, in regard to a memorandum of November 2, 1926, understood to have been delivered to the Department by the Legation of the Netherlands at Washington, I am now able to inform you that the Legation has very courteously placed at the disposal of the Department its file copy of what purports to be the memorandum in question. A copy of this file copy is transmitted to you herewith.

Before returning the memorandum to the Legation, the Department had a photostat copy made for its files. Should you desire a photostat copy of this. photostat, it will be furnished to you at the usual charge.

Sincerely yours,

For the Acting Secretary of State:

WALLACE MCCLURE, Acting Chief, Treaty Division.

MEMORANDUM FROM THE NETHERLANDS GOVERNMENT ON THE RECIPROCAL COPYRIGHT RELATIONS BETWEEN THE UNITED STATES AND THE NETHERLANDS

(November 2, 1926)

It is claimed by the Dutch Government that a copy of this memorandum was delivered on November 2, 1926, to the Solicitor General of the Department of State.

On May 16, 1940, the original memorandum was located by Fulton Brylawski in the Dutch Embassy; it has an endorsement on its back stating that a copy was delivered by the Dutch Charge d'Affaires to the Solicitor General of the State Department on November 2, 1926.

In the summer of 1940, the United States Department of State obtained from the Legation of the Netherlands at Washington a copy of the memorandum and under date of July 31, 1940, Dr. Wallace McClure of the Treaty Division of the Department of State forwarded a copy of the memorandum of Mr. Fulton Brylawski.

There is no Solicitor General in the Department of State. There is a United States Solicitor General in the Department of Justice; at that time (1926), the Solicitor of the State Department was sometimes known as the Solicitor General. There is no record in the Department of State or in the Office of the United States Solicitor General showing that the memorandum had been delivered. The existence of the document was unearthed in an investigation in the summer of 1939 ordered by the Dutch Minister of Justice at the request of Mr. Vonck, attorney

for Twentieth Century-Fox Film Corporation, in Rotterdam, Holland, in the "Daddy Long Legs" case.

Mr. Vonck in December 1939 wrote as follows:

"Mr. Kilroe refers to the declaration dated October 2, 1922, whereby the Dutch Minister for Foreign Affairs stated that American authors are protected in Holland and vice versa, but this declaration was revoked by the Dutch declaration of November 2, 1926, and neither you nor I had received any information about such a revocation.

"It happened that on November 2, 1926, the Dutch Chargé d'Affaires in Washington delivered to the Solicitor General in Washington a lengthy memorandum by which he not only withdrew the declaration of October 2, 1922, but expressly stated that American authors are not protected in Holland. This declaration seems to have escaped the attention of all parties concerned."

MEMORANDUM FROM THE NETHERLANDS GOVERNMENT ON THE RECIPROCAL COPYRIGHT RELATIONS BETWEEN THE UNITED STATES AND THE NETHERLANDS

(November 2, 1926)

The Netherlands Government have examined the question whether misunderstanding may not have been caused, as a consequence of changes made at varying times in existing legislation both in the Netherlands and in the United States and by declarations made by Her Majesty's Government in 1899 and in 1922, with regard to the basis on which rests the copyright protection granted to Netherlands subjects in the United States. Although it would appear from the wording of the Proclamation issued by the President of the United States in respect of this matter on February 26, 1923, especially when compared with the similar document of April 9, 1910, which it replaced, that the whole position was reviewed by the United States Government previous to the first-mentioned Proclamation being issued, and although a letter from the American Legation at The Hague of May 4, 1922 (a copy of which is annexed hereto), would seem to indicate that the American Government was at that time conversant with the copyright-law of the Netherlands, Her Majesty's Government are anxious to consider the matter with the Government of the United States without any delay now that they have been led to believe that misunderstanding exists.

The facts would appear to be as follows:

In 1899, when in the Netherlands there was in force the old copyright act ("auteurswet") of June 28, 1881 (abolished in 1912), an exposition of the law prevailing by virtue of that act was addressed to the American Minister at The Hague by letter of the Minister for Foreign Affairs dated October 14, 1899. It was stated therein that, in the matter of copyright protection, American citizens had, according to Netherlands legislation, the same rights as Netherlands subjects and that the legal requirements which the former had to fulfill were exactly the same as those which the latter had to observe. The President of the United States, having regard to section 13 of the act of Congress of March 3, 1891, entitled "An Act to amend title sixty, chapter three, of the Revised Statutes of the United States, relating to copyright," thereupon issued a proclamation, dated November 20, 1899, whereby the said act of Congress was made to apply to Netherlands subjects.

A new act of Congress in respect of copyrights was approved on March 3, 1909, followed by a Presidential proclamation dated April 9, 1910, extending to Netherlands subjects the benefits of the new act, with the exception of the provision of section 1, clause (e) thereof (which clause relates to mechanical reproduction of musical works) pending a reply from the Netherlands Government to a statment of the United States Government with regard to that provision. The new proclamation was not preceded by any statement from the Government of the Netherlands; according to a communication from the Department of State to the Netherlands Legation in Washington dated April 15, 1910, it was made in view of the fact that the Attorney General had then recently rendered an opinion holding that it was necessary, in order that the benefits conferred by the new copyright act might be enjoyed by an alien author or proprietor (not domiciled within the United States at the time of the first publication of his work), that new proclamation be made by the President in the case of those countries as to which proclamations were issued under the old act.

In response to a new communication from the American Minister at The Hague, dated January 24, 1911, with regard to section 1, clause (e), o the American Copyright Act of 1909, a reply was sent on March 13, 1911, in which it was

stated that as soon as a decision would be taken to adhere to the revised Berne Convention, the Netherland Government would present without delay to the States-General a draft of a new copyright law, containing provisions for the protection of musical works against reproduction by mechanical instruments. It was added that on the presentation of that draft to the States-General, a treaty might be concluded to extend that protection to citizens of the United States. No further action was thereupon taken in the matter on either side

On November 1, 1912, a new copyright law came into force in the Netherlands. Article 47 of that law, first paragraph (a provision which later on was altered, as will be shown hereafter) then read as follows:

"Deze wet is van toepassing op alle werken van letterkunde, wetenschap of kunst, welke hetzij voor, hetzij na haar in werking_treden voor de eerste maal door of van wege den maker zijn uitgegeven in het Rijk in Europa of in Nederlandsch-Indië, alsmede op alle zoodanige niet uitgegeven werken, welker makers zijn Nederlanders of andere Nederlandsche onderdanen,'

Which in English translation may be read:

"This law applied to all works of literature, science, or art, published for the first time by or on behalf of the maker, either before or after its coming into force, in the Kingdom in Europe or in Netherlands-India, and also to all such not published works whose makers are Netherlanders or other Netherlands subjects."

It is shown by the underlined words that from the moment at which this provision became law, it was questionable whether the condition of section 8 (b) of the American copyright act of 1909, on whose fulfillment the Presidential proclamation of 1910 depended, and which required a protection to be granted in the Netherlands to citizens of the United States on substantially the same basis as to Netherlands subjects, was still fulfilled. Under these circumstances it may be asked whether the new state of things ought not to have been explained to the United States in order to dispel any possible doubt. At the time, however, the attention of the Netherlands administration in matters of copyright appears to have been focussed entirely on its copyright relations with countries belonging to the Berne International Union, to which the Kingdom adhered in 1912; in fact, it was this adhesion which caused the copyright law of the same year to be enacted. In any case, no communication to the United States Government was made; whether because it was deemed unnecessary or because it was simply forgotten, the records do not disclose.

The war came, and therewith a state of affairs causing many external problems in connection with the defence of neutrality to engross the attention of the Netherlands Government, and hardly conducive to careful or even normal consideration of matters which, like the international protection of copyrights, were not then uppermost among the preoccupations of the Executive. It was in those circumstances, that in 1915 there was passed a "law further to amend the transitory provisions of the copyright law, 1912" (Staatsblad 1915 No. 446), which, whatever may have been the significance of the above-quoted article 47 of the law of 1912, was of great importance for the copyright relations between the Netherlands and the United States.

That law of 1915 contained various clauses calling for a not inconsiderable amount of comment in the shape of written explanations addressed to the StatesGeneral by the Executive. One small amendment however, which apparently was considered unimportant, only gave rise to the short remark that its aim was merely to make one of the provisions of the law of 1912 a little clearer; it elicited no written or oral parliamentary discussion. It was precisely this amendment which altered a point of primary importance in the basis of the copyright protection extended to Netherland subjects in the United States.

The small amendment in question consisted in replacing the words "niet uitgegeven" at the end of article 47 of the law of 1912, by "niet aldus uitgegeven;" "not published" in the above-offered English translation thereby became "not thus published."

Read in conjunction with the preceding words of the said article, "not thus published" would appear to be open only to one construction: "not published for the first time by or on behalf of the maker, either before or after its coming into force, in the Kingdom in Europe or in Netherland India." In other words, all works of literature, science or art "not thus published" were henceforth unprotected unless the makers were Netherlanders or other Netherland subjects.

It is clear that this destroyed the fulfillment of the condition set forth in section 8 (b) of the American copyright law of 1909; that, this being so, the basis of the Presidential proclamation of April 9, 1910, insofar as relating to the Netherlands, was no longer available, and that consequently Netherland subjects could no longer be held to be entitled to copyright protection in the United States.

This ought certainly to have been brought to the knowledge of the Government of the United States. The Netherlands Government regrets that the necessary steps were not taken to that end. There were perhaps extenuating circumstances in connection with this omission, but no valid excuse.

Her Majesty's Government do not know whether the clause in question of the amendment law of 1915 passed unheeded in the United States. The letter from the American Legation at The Hague of May 4, 1922 (a copy of which, as stated in the beginning of the present memorandum, is annexed hereto) would seem to indicate that the American Government was at that time conversant with the copyright law of the Netherlands. But there is no evidence in the possession of Her Majesty's Government showing that the United States were aware of the change which in 1915 was made in article 47 of the Netherlands coypright law and which has been explained above. The Netherlands Government, seeing that no observations concerning the matter were made no behalf of the United States, and that the presidential proclamation of 1910 was not withdrawn must therefore assume that after the law of 1915 the United States Government were still in the belief that the condition stated in section 8 (b) of the American copyright law of 1909 continued to be fulfilled in the Netherlands.

This was the state of things, when in its letter of May 4, 1922 (annexed), the American Legation at The Hague raised the question of protection of musical compositions from being reproduced by mechanical instruments.

This question was considered by the department concerned, but in giving consideration to it, section 1 (e) of the American Copyright Act, was considered as an isolated clause, and not (as should have been done) in its connection with section 8 (b) of the same act. The point was only contemplated as a question as to whether or not there was any special discrimination in the Netherlands between Netherlands subjects and aliens in the matter of protection of musical compositions from reproduction by mechanical instruments. Thus it was possible that the declaration was given which accompanied the note from the Minister for Foreign Affairs at The Hague to the American Chargé d'Affaires ad interim, dated October 2, 1922.

Naturally the American Government was thereby led to believe that, in addition to the condition stated in section 8 (b) of the American Copyright Act, the condition set forth in section 1 (e) of that act was then fulfilled by the Netherlands. This belief doubtless was at the root of the Presidential proclamation issued on February 26, 1923, in which it was declared that one of the alternative conditions specified in sections 1 (e) and 8 (b) of the act of March 4, 1909, was fulfilled in respect to the subjects of the Netherlands, and that the subjects of the Netherlands from and after that date would be entitled to all the benefits of the said act, including copyright controlling the parts of instruments serving to reproduce mechanically a musical work, as provided in section 1 (e) of the said act, in the case of all works by the Netherlands authors, which have been published on or after October 1922 and have obtained copyright in accordance with the law of the United States.

The Government of the Netherlands regrets that a situation was thus created for which there was no proper legal basis and that a declaration was made by which, whilst misunderstanding was prevailing in the Netherlands, misunderstanding was created, if not prolonged in the United States. Now that the position is realized, this early opportunity is taken to lay the matter before the American Government. That this was not done at the time when the American Proclamation of 1922 was issued, must be ascribed to the fact that that document was not then submitted to special scrutiny, precisely because it was assumed that the Proclamation was only to refer to mechanical reproduction.

The Government of the Netherlands have asked themselves whether, by reason of the fact that the Netherlands are a party to the Bern Convention, the third alternative condition stated in section 8 (b) of the American copyright act might be said to be fulfilled. But the recitals of the presidential proclamation of 1923, and a report on the act of March 3, 1891 (communicated by the Minister of the United States at The Hague on August 15, 1899), which report, although the act of 1891 has been repealed, would appear still to be of direct importance to this aspect of the question, create doubt as to whether that third alternative requirement has been met. The Netherlands Government therefore are examining the question whether the system of the copyright law of the country permits a modification of the law of 1912 which would meet the case for the future, and also whether a solution can be considered by them in the sense of adjusting the matter by making an agreement with the United States if this latter course would commend itself to the American Government.