Copyright: Its History and Its Law Part 11

The complicated question of the ownership and the right to secure copyright in translations from foreign works or into foreign languages, under this international copyright provision, is covered under translation in the preceding chapter on subject-matter of copyright.

{Sidenote: Proclaimed countries}

Under the provisions of the international copyright clause of 1891 Presidential proclamations have designated as countries with which the United States has copyright relations (July 1, 1891) Belgium, France, Great Britain and her possessions, Switzerland; (April 15, 1892) Germany; (October 31, 1892) Italy; (May 8, 1893) Denmark; (July 20, 1893) Portugal; (July 10, 1895) Spain; (February 27, 1896) Mexico; (May 25, 1896) Chile; (October 19, 1899) Costa Rica; (November 20, 1899) Holland and possessions; (November 17, 1903) Cuba; (January 13, 1904) China--this treaty of October 8, 1903, protecting for ten years books, maps, prints or engravings "especially prepared for the use and education of the Chinese people," or "translation into Chinese of any book," but leaving to Chinese subjects liberty to make "original translations into Chinese"; (July 1, 1905) Norway; (May 17, 1906) j.a.pan--this treaty of November 10, 1905, also excepting translations, and (August 11, 1908) additionally protecting j.a.panese relations in China and Korea; (September 20, 1907) Austria, not including Hungary; and (April 9, 1908) under the Pan American convention signed in Mexico City, January 27, 1902, effective from July 1, 1908, Guatemala, Salvador, Costa Rica, Honduras and Nicaragua.

{Sidenote: Under act of 1909}

Under the provisions of the act of 1909, the President of the United States issued a general proclamation, dated April 9, 1910, certifying anew to the existence of reciprocal relations with the above-mentioned countries, under the arrangements of the new act, as from its effective date July 1, 1909. This accepted such relations as continuous and uninterrupted, without the necessity of new treaties, with the effect that international copyrights before July 1, 1909, were under the arrangements of the act of 1891 and from and after that date under the arrangements of the code of 1909. Luxemburg was added by proclamation of June 29, 1910, and Sweden by that of May 26, 1911. Proclamations of December 8, 1910, as to Germany, and June 14, 1911, as to Belgium, Luxemburg and Norway, proclaimed reciprocal relations as to mechanical reproductions.

{Sidenote: Buenos Aires convention}

The ratification of the Buenos Aires convention by the U. S. Senate, February 16, 1911, has the effect of authorizing the President to proclaim reciprocal relations with other countries which are parties to that treaty, as each ratifies the convention.

{Sidenote: The new British code}

The new British measure specifies that "the author of a work shall be the first owner of the copyright," except where an engraving, photograph, or portrait is ordered for valuable consideration or where work is done in the course of employment. The owner may a.s.sign the copyright in writing, "either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by license"; in case of partial a.s.signment, the original owner and the a.s.signee become respectively the owners of the residual and a.s.signed portions of the copyright. But any a.s.signment, except by will, becomes null and void twenty-five years after the death of the author when the entire rights revert to his heirs.

{Sidenote: Foreign practice}

In general the statutes of most of the copyright countries designate "authors" and their "a.s.signs and heirs" as the persons who may obtain copyright. The Australian law of 1905 defines "author" to include "the personal representatives of an author." In certain countries the laws specifically mention as persons who may secure copyright "joint authors," "proprietors" in some countries and "publishers" in other countries of anonymous and pseudonymous, posthumous or unpublished works, periodicals and composite works, "corporate bodies,"

"translators," "editors, compilers or adapters" and "persons who give a commission for a portrait or photograph."

VIII

DURATION OF COPYRIGHT: TERM AND RENEWAL

{Sidenote: Historic precedent}

The duration of copyright was in the early printers' privileges for a short term, as for seven years, except in France, where copyrights were in perpetuity until the act of the National a.s.sembly; in modern times the copyright term has been lengthened until a term extending through and beyond the life of the author has been adopted by thirty-seven countries, or more than half of those which have copyright laws, of which four a.s.sure perpetual copyright. The Const.i.tution imposes only one limitation on the comprehensive rights of authors, in the provision that protection shall be "for limited times" only. This provision has made the discussion of perpetual copyright purely academic in this country.

The new American code adopts the double term of twenty-eight and twenty-eight years, making fifty-six years in all, without reference to the life of the author.

{Sidenote: Previous American practice}

The American law previous to 1909 provided for a uniform term of twenty-eight years, dating from the time of recording the t.i.tle, with a renewal of fourteen years, securable only by the author, or, if he be dead at the expiration of the term, by his widow or children. No other heirs or persons could renew. The new code differs in making the renewal period a second twenty-eight years and extending the right of renewal to the executors or next of kin and to the proprietors of composite or other impersonal works; but it still denies renewal to a.s.signee proprietors of personal works.

{Sidenote: Term in code of 1909}

The American code of 1909 provides (sec. 23) "that the copyright secured by this Act shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author's true name or is published anonymously or under an a.s.sumed name," and makes provision also in the cases specified for renewal for a second period of twenty-eight years, provided that renewal application is registered in the Copyright Office "within one year prior to the expiration of the original term of copyright."

{Sidenote: Renewal}

The provisions as to renewal are in full as follows (sec. 23): "_Provided_, That in the case of any posthumous work or of any periodical, cyclopaedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as a.s.signee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be ent.i.tled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: _And provided further_, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopaedic or other composite work when such contribution has been separately registered, the author of such work, if still living, or the widow, widower or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin shall be ent.i.tled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: _And provided further_, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication."

{Sidenote: Extension of subsisting copyrights}

The extension of copyrights subsisting July 1, 1909, is provided for as follows (sec. 24): "That the copyright subsisting in any work at the time when this Act goes into effect may, at the expiration of the term provided for under existing law, be renewed and extended by the author of such work if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then by the author's executors, or in the absence of a will, his next of kin, for a further period such that the entire term shall be equal to that secured by this Act, including the renewal period: _Provided, however_, That if the work be a composite work upon which copyright was originally secured by the proprietor thereof, then such proprietor shall be ent.i.tled to the privilege of renewal and extension granted under this section: _Provided_, That application for such renewal and extension shall be made to the copyright office and duly registered therein within one year prior to the expiration of the existing term."

{Sidenote: a.s.signee of unpublished ma.n.u.scripts}

In holding with the Attorney-General that an a.s.signee cannot obtain renewal, Judge Brown in the U. S. Circuit Court in Rhode Island, in White Smith _v._ Goff, in 1910, raised but did not decide the "difficult" question whether, if an author sells his unpublished ma.n.u.script with right to publish and copyright, the new owner as the original copyright proprietor may claim renewal, or whether the author might reclaim the right.

{Sidenote: Extension of subsisting renewals}

Under the provisions of the renewal clauses (sec. 24), not only may the original copyright term of a subsisting copyright be renewed for the longer term of twenty-eight years instead of fourteen years, but a subsisting copyright renewal may be extended from the added fourteen years to the full renewal term of twenty-eight years, and a separate application form for this latter cla.s.s of cases is provided by the Copyright Office.

{Sidenote: Publishers' equities}

In the copyright conferences, it was pointed out by publishers that the right of the author to renewal, and the implied denial of that right to an a.s.signee proprietor, placed at serious disadvantage a publisher who had made investment in plates of an author's works, and would be deprived of the use of his investment at the end of the original term in case the author preferred to make arrangements with another publisher for the renewal term. The Congressional Committee failed, however, to provide a remedy for this through the proposed Monroe-Smith amendment, requiring that in such case author and publisher should unite in the application for renewal. No contract on the part of an author can give a publisher the right to claim copyright renewal under the new code, although a contract to make claim for the renewal period and transfer the copyright for the renewal period to the publisher, might be enforced by the courts through a writ requiring the author to enter such claim and a.s.sign the renewed copyright in accordance with the contract. When a copyrighted work is sold "outright," it therefore does not include renewal of the copyright, and unless the author registers his renewal claim, the right to renewal lapses.

{Sidenote: Estoppel of renewal}

Where an author has sold "outright" all his right, t.i.tle and interest in his work, it is possible that this may estop him from application for renewal or invalidate a renewal, but this question must be decided by the courts when a case arises. It is important that any contract between author and publisher should be clear and specific on this vexed question of rights for the renewal term. No provision is made for notification of renewal in the copyright notice, and therefore, after the expiration of the original term, information must be sought from the Copyright Office as to whether there has been renewal extension of the term. As it would be hazardous to omit the original copyright notice or to replace it by one giving the date of renewal, which might be construed to involve claim of a longer term and thus defeat itself, it may prove the wiser course to add to the official original notice, the unofficial notice "Copyright renewed, 19__."

{Sidenote: Life term and beyond}

The international copyright convention, as modified at the Berlin conference of 1908, adopted the term of life and fifty years,--previously in force in France and fourteen other countries,--subject to adoption by domestic legislation. A term of life and a specified number of years after the death of the author, preferably fifty years for personal works, and a term of fifty years for impersonal works, was advocated by the American Copyright leagues and other friends of copyright and was in the early drafts of the new copyright code.

It was pointed out that Emerson, Longfellow, Lowell, Whittier, Holmes and others outlived their earlier copyrights; that Edward Everett Hale, whose "Man without a country" did for this nation a patriotic service scarcely second to that of the great generals of the civil war, had no longer copyright in this work, although private soldiers, their relicts and descendants, were still paid pensions; and that many others of our foremost authors had been, or under the present system would be, deprived of their created property within their lifetime. The term advocated provides for the author and his children's children during the probable minority of the grandchildren, a period to which the entail of realty is limited by our laws. But the final decision of the Congressional Committees was for the simpler, though in other respects less satisfactory, period of twenty-eight years, as heretofore, with a renewal period of a second twenty-eight years, under the limitations above cited. No other countries, except Canada and Newfoundland, following our example, have this double or renewal term.

{Sidenote: Unpublished works}

As a lecture or other work intended for oral delivery or a dramatic or musical work or a work of art, an unpublished dramatic or musical work or a work of art not reproduced in copies for sale is copyrightable without reference to date of publication, it is not altogether certain whether the term extends from the date of registration or the date of first delivery, performance or exhibition, or whether the statutory law now protects such a work under common law as unpublished, pending publication and therefore for an indefinite period if not practically in perpetuity. The Copyright Office issues a certificate for twenty-eight years, but without reference to initial date, which would be presumably the date of the certificate. The Copyright Office will doubtless, under this precedent, issue renewal certificate for the second term of twenty-eight years.

{Sidenote: Publication as date of copyright}

As the new copyright code makes publication with notice the basis of copyright instead of entry and deposit, as formerly, the term of copyright now dates from publication, and "the date of publication" is specifically defined (sec. 62) as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority."

Such date is included in the application for registry at the Copyright Office, and on the same day twenty-eight years or fifty-six years thereafter the copyright ends. A provision for terminating copyrights at the end of the calendar year of expiration was included in the early drafts of the code, but was not included in the law as enacted.

{Sidenote: Serial publication}

In the case of works published and copyrighted as serials, as a novel published in parts in a monthly magazine, the copyright runs technically from the first publication of each part; and at the end of the twenty-eight or fifty-six years, each part could be successively published at monthly intervals free from copyright. Practically, however, such a copyrighted serial could not be published complete until twenty-eight or fifty-six years from the publication of the last part.

In usual practice a novel is printed in book form a month or two before its completion as a serial in a magazine, and the date of the copyright on the completed work would then terminate at the end of the twenty-eight or fifty-six years from publication in book form.

{Sidenote: Joint authorship}

The use of the date of publication as the beginning of the copyright term and the specification of twenty-eight years and twenty-eight years for its duration, obviates questions as to anonymous and pseudonymous works, composite works or works of joint authorship. The earlier drafts of the bill, providing for a term through and beyond life, made the lifetime of the last surviving author the basis for the term of copyright on works of joint authorship. This method was interestingly applied in the German courts, when it was held as to the opera "Carmen"

that Bizet's music was out of copyright, but that the libretto was protected because one of its three joint authors was still living.

{Sidenote: Termination by forfeiture or laches}

A copyright is terminated _ipse facto_ by forfeiture as provided in the act, either because of failure to deposit copies after notice from the Copyright Office (sec. 13), or because of false affidavit of American manufacture (sec. 17). It may also be terminated by _laches_, that is, carelessness in protecting one's rights, as by omission of the notice, unless by accident or mistake, from particular copies (sec. 20).

{Sidenote: Abandonment}