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(b) Again, constructions of the term "publication" in different countries particularly affect the protection of art, for a painting which is legally published in one country may be unpublished in another.
Three copyright unions exist, namely, that of the Berne convention of 1887 (subsequently enlarged and amended); that of the Montevideo convention of 1889, and that of the Pan-American convention of 1902. Most countries are subscribers to one or more of them. The citizen of a subscriber enjoys without further formality either the same protection as the citizen of the foreign country (as in the Berne convention) or the protection in the foreign country which he enjoys in his own (as in the Montevideo convention). The laws of certain foreign countries enacted to provide for the rights of foreigners under these conventions do not in all cases apply to the rights of foreigners where same are granted by treaty only which is apt to be misleading in effect.
The United States being incapable of subscribing to these conventions, its citizens derive their rights abroad solely through the special treaties. A United States citizen, therefore, who secures copyright aboard generally must comply with the local conditions of the foreign country (unless it falls under class 1 cited above), which is a very different status from that of a citizen whose country is a subscriber to the conventions.
Nor must we lose sight of the distinction between the copyright of a work of art which prevents its being published piratically (such as a painting) and the copyright which not only protects, but also gives in a practical way the sole right of publishing copies. They are two distinct cases.
The fine-arts copyright act (1862) of England expressly confines copyright in paintings, drawings, and photographs to a British subject or resident within the dominions of the Crown. When the President proclaimed Great Britain as entitled to the benefits of the Chace Act it was assumed that residence was not a necessary condition to obtain protection in England. It subsequently trans
pired that while this was correct for other classes of copyright property, it was not in the three cases just given because this bill was passed subsequent to the international copyright act of 1844. The British international copyright act of 1886 only applies to subscribers of copyright unions.
Engravings, lithographs, and prints made by Americans may obtain copyright, but conditions of manufacture are ambiguous. Another complication in the English law. The illustrations first published in a "registered book" will be protected against piracy, even when made by a foreigner not a resident.
Canada gives registration of copyright to a citizen of the United States upon the applicant showing that he has subsisting British copyright of such work and otherwise complying with the requirements. The manufacturing restrictions compel the reproduction of works of art in Canada. We are therefore practically debarred from copyright upon engravings, prints, lithographs, and photographs, and, indirectly, of paintings.
Belgium grants protection to foreigners without any condition of reciprocity.
Holland grants American authors copyright, but in order to obtain Dutch copyright, the American must comply with the same conditions as to printing as our laws impose on them--that is, if we restrict them in the manufacturing we are restricted to an equal degree.
Citizens of the United States have the same protection of copyright as that of the subjects of the German Empire. The treaty covering the same is a mat
ter of great dissatisfaction in Germany. The American painter is perfectly protected without any formalities, but on account of the difference of laws we are not so well protected in some of the other arts.
Any foreigner who publishes a work in France is put entirely on the same footing as a French author with respect to copyright. A foreigner who publishes in a country with which France has no copyright convention can only sue for infringement if he complies with certain formalities, and the status of his rights is not clearly defined as it is in the case of a subscriber to the Berne convention.
Italy applies her law to authors of works published in a foreign country provided that country gives authors copyright which is reciprocally applicable to works published in Italy. In 1892 the United States and Italy proclaimed reciprocal arrangements under the Chace Act, but on account of the feeling in Italy against the manufacturing clauses in our law she expressly reserved the right to denounce the arrangement.
The native assignee of the local rights in a foreign work can probably prevent piracies by others, and foreigners having residence within the country are also protected, but in all other cases the foreigner has little rights unless his country is a subscriber to the Montevideo convention.
Rights are practically restricted to Brazilians and foreigners resident in the country.
PRINT PUBLISHERS' ASSOCIATION.
III.-Requirements for affixing "Notice" to original works of art before publication.
Amendments suggested to Smoot and Currier bills:
In sections 10 of both bills, strike out the last sentence reading:
"In the case of a work of art or a plastic work or drawing, such notice shall be affixed to the original also before publication thereof within the United States."
In lines 24, 25, 1, and 2 of section 12 of the Smoot bill and lines 21, 22, and 23 of section 12 of the Currier bill, strike out the words:
"The notice of copyright in these latter cases being affixed to the original before publication as required by section 10 of this act."
1. These amendments would make the new law conform to the latest construction of existing law.
2. "Notice" upon the originals is superfluous.
3. The change will make our "Notice" (as to originals) conform to that of foreign countries.
4. Greater security will result and the respective rights will be more clearly defined.
These sections compel the affixing of Notice" to the original works of art (such as paintings and sculpture) before publication of the copies. Since these bills were introduced the decision of the United States Supreme Court has been handed down in the Werckmeister v. American Tobacco Company case. One of the points involved was the alleged necessity of affixing Notice" to originals under the existing law. A copy of the decision has been filed, and we quote extracts from same below:
[Page 7, second paragraph.]
"We think it was the object of the statute to require this inscription (Notice) not upon the original painting, map, photograph, drawing, etc., but upon those published copies concerning which it is designed to convey information to the public which shall limit the use and circumscribe the rights of the purchasers."
[Page 7, bottom paragraph.]
"If the contention of the plaintiff in error be sustained, the statute is satisfied only when the original map, chart, etc., or painting is inscribed with the Notice, and this is requisite whether the original painting is ever published or not. We think this construction ignores the purpose and object of the act, which Mr. Justice Miller has said in the language just quoted, is to give notice of the copyright to the public-that is, to the persons who buy or deal with the published thing."
[Page 8, paragraph 3.]
"It would seem clear that the real object of the statute is not to give notice to the artist or proprietor of the painting, or the person to whose collection it may go, who need no information, but to notify the public, who purchase the circulated copies, of the existing copyright in order that their ownership may be restricted."
We respectfully request amendment of the two sections named to conform to this decision.
1. In doing so we wish to make it clear that we are very grateful for the immense advance over existing law these two sections make in the Notice requirements for copies. In that respect they will give a degree of relief from the present intolerable conditions which it is difficult for us to express. These further amendments will merely put the proposed bill in line with the latest construction of existing law as to originals.
2. The publisher, who is often under stringent contract obligations to the artist, can only control the Notice on the copies he makes. The original passes into other hands having no interest in maintaining the Notice and often objecting to it. The result is the possible misleading of the public, if it has access to the original, and the chance of loss of the copyright through no fault either of the artist or the publisher. If the original is not accessible, obviously Notice is superfluous.
The new definition of "Publication" makes it necessary for anyone wishing to copy an original to refer either to published copies or the copyright office or the artist so that it is impossible for him not to become aware of the copyright. No necessary purpose would be filled by Notice upon the original.
3. The amendments proposed would make our requirements as to original works of art exactly the same as those of all foreign countries. None of them require Notice." It is impossible to convince foreign artists of the necessity of such Notice, and it is difficult even to secure it from many American artists, with the result of hampering the American publisher and circumscribing his field.
4. This decision of the Supreme Court, if followed in the new copyright law, will ultimately be to the advantage of all artists and legitimate publishers. It will also benefit purchasers both of originals and copies, whose rights in the past have been very uncertain.
PRINT PUBLISHERS' ASSOCIATION,
W. A. LIVINGSTONE, President.
THE IMPORTATION OF AUTHORIZED FOREIGN EDITIONS OF A WORK IN WHICH THERE IS DOMESTIC COPYRIGHT.
Statement prepared by the Librarian of Congress at the request of the chairman of the House Committee on Patents, as to the law of foreign countries with reference to the prohibition of importations of authorized foreign editions of a work in which there is domestic copyright. Submitted at the joint session of the Senate and House Committees on Patents on March 29, 1908. Ordered to be inserted in the record.
I. Statement. Under this: A. Existing foreign statute law: Canada, Great Britain, the Continent. B. The commentators.
II. Partial list of authorities consulted.
III. Extracts from British statutes.
IV. Extracts from continental statutes and from commentators.
A. EXISTING FOREIGN LAW.
Canada. The law of Canada deserves first examination because, inter alia, (1) it affects transactions with the mother country, as to editions in an identical language, naturally competing, and (2) Canada also has the “manufacturing clause."
The significant statute is that of July 18, 1900. Herewith in full:
[Act of July 18, 1900, 63 and 64 Victoria, chapter 25.]
AN ACT To amend the copyright act. [Assented to 18th July, 1900.]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1. If a book as to which there is subsisting copyright under the copyright act has been first lawfully published in any part of Her Majesty's dominions other than Canada, and if it is proved to the satisfaction of the minister of agriculture that the owner of the copyright so subsisting and of the copyright acquired by such publication has lawfully granted a license to reproduce in Canada, from moveable or other types, or from stereotype plates, or from electroplates, or from lithograph stones, or by any process for facsimile reproduction, an edition or editions of such book designed for sale only in Canada, the minister may, notwithstanding anything in the copyright act, by order under his hand, prohibit the importation, except with the written consent of the licensee, into Canada of any copies of such book printed elsewhere: Provided, That two such copies may be specially imported for the bona fide use of any public free library or any university or college library, or for the library of any duly incorporated institution or society for the use of the members of such institution or society.
2. The minister of agriculture may at any time in like manner, by order under his hand, suspend or revoke such prohibition upon importation if it is proved to his satisfaction that (a) the license to reproduce in Canada has terminated or expired; or (b) the reasonable demand for the book in Canada is not sufficiently met without importation; or (c) the book is not, having regard to the demand therefor in Canada, being suitably printed or published; or * (d) any other state of things exists on account of which it is not in the public interest to further prohibit importation.
3. At any time after the importation of a book has been prohibited under section 1 of this act any person resident or being in Canada may apply, either directly or through a bookseller or other agent, to the person so licensed to reproduce such book, for a copy of any edition of such book then on sale and
reasonably obtainable in the United Kingdom or some other part of Her Majesty's dominions, and it shall then be the duty of the person so licensed, as soon as reasonably may be, to import and sell such copy to the person so applying therefor, at the ordinary selling price of such copy in the United Kingdom or such other part of Her Majesty's dominions, with the duty and reasonable forwarding charges added; and the failure or neglect, without lawful excuse, of the person so licensed to supply such copy within a reasonable time, shall be a reason for which the minister may, if he sees fit, suspend or revoke the prohibition upon importation.
4. The minister shall forthwith inform the department of customs of any order made by him under this act.
5. All books imported in contravention of this act may be seized by any officer of customs, and shall be forfeited to the Crown and destroyed; and any person importing, or causing or permitting the importation, of any book in contravention of this act shall, for each offense, be liable, upon summary conviction, to a penalty not exceeding $100.
NOTE.-Passed by the House of Commons July 4, 1900; by the Senate on July 9, 1900, and assented to by the Governor-General of Canada. in Her Majesty's name, on July 18, 1900.
From "Acts of the Parliament of the Dominion of Canada, 1900, vol. 1. Public general acts," 8°. Ottawa, S. E. Dawson, 1900, pp. 187–188.
(1) A licensee of the exclusive right to reprint, for sale in Canada, a book first lawfully published in any other part of the British dominions, may exclude all other editions, including the original edition, except that—
(2) Exceptions: (a) Public, etc., libraries may import two copies of any edition printed elsewhere. (b) "Any person resident or being in Canada may require the licensee to import for him a copy of any edition "then on sale and reasonably obtainable" in other of the British dominions.
(3) The failure or neglect without excuse of the licensee to comply with this request is made "a reason for which the minister [of agriculture] may, if he sees fit, suspend or revoke the prohibition upon importation."
(4) The act (sec. 2) states four other circumstances under which such prohibition may be suspended or revoked [by the minister]. These include (c) that "the book is not, having regard to the demand therefor in Canada, being suitably printed and published," and (d) "that any other state of things exists on account of which it is not in the public interest to further prohibit importation."
NOTE. The validity of the act of 1900 is doubted by Mr. Briggs as "prima facie in conflict with the imperial statutes; " its effect (coupled with the prohibition by the imperial act of 1875 of the importation of Canadian reprints into the United Kingdom) being “ virtually to sever the Canadian market from the English and to put a check on the circulation of books (lawfully printed) between the various parts of the British dominions."
But the act appears to be operative.
Earlier legislation in Canada and other colonies admitted reprints of books first composed, written, or published in the United Kingdom and copyrighted there, upon payment of a duty of 20 per cent, which was to go to the author or copyright proprietor. It is continued in Newfoundland by the act of 1892. It bars, except upon such payment, copies "for use" as well as for sale or hire. The above practice was countenanced by the imperial foreign reprints act of 1847, which permitted the importation into Great Britain of such reprints made in its colonies, subject to the duty as royalty to the British copyright proprie tor. The operation of this royalty system proved ineffective.
Great Britain.-The existing law appears to be still the act of 1842, section 17, and the act of 1844, section 10 [of which the act of 1852 appears merely a repetition with additional specification of subject matter]; the colonial copyright act of 1847 ("the foreign reprints act"); the customs consolidation act of 1876.
The acts of 1842 and 1844, above sections, are appended (pp. 3a et seq.). Characteristics.
1842. Section 17. (1) Prohibits importation into any part of the British dominions for sale or hire, of reprints made outside of the British dominions,
a Law of International Copyright, London, 1906, Pt. IV, Ch. II.