Copyright: Its History and Its Law Part 32

There appears to be no legal impediment to the ratification of this convention, nor would it const.i.tute a breach of faith toward other countries; and in pointing out the probable effect of some of its provisions I do not intend thereby to express or intimate an opinion that it ought not to be ratified." The question of the relation between treaty provisions and domestic legislation especially affects copyright arrangements and has been the subject of discussion and a matter of difficulty in England and other countries as well as in the United States. The Senate did not act finally upon the Mexico convention until 1908, when it was duly ratified, and this precedent opened the way for more prompt ratification of the Buenos Aires convention.

{Sidenote: United States international relations}

The United States, as a party only to the Pan American Union and not a member of the International Copyright Union under the Berne-Berlin conventions, has not secured for its citizens general rights of copyright in other countries, without repet.i.tion of formalities, and such rights are secured only in the countries designated by Presidential proclamation and according to the formalities of their domestic legislation. It seems, however, that citizens of the United States may obtain general protection throughout the unionist countries by publishing in a unionist country simultaneously with first publication in the United States, and thus coming under the protective provisions of the Berlin convention. The Mexico convention permits citizens of the United States to obtain copyright in other countries ratifying that convention, by deposit at Washington of extra copies for transmission to countries designated, with certified copy of the registration. When the Buenos Aires convention is ratified by other powers nothing more will then be required than the usual application and deposit at Washington and notice of the reservation of rights, preferably in connection with the copyright notice, of which "all rights reserved for all countries"

is the most comprehensive form.

{Sidenote: "Proclaimed" countries}

Under section 8 of the act of 1891, the President "proclaimed" from time to time the existence of reciprocal relations with other countries, which permitted their citizens to obtain copyright in the United States under the act, and American citizens to obtain protection under their respective copyright laws. The question of the _status_ of these countries under the act of 1909 was solved by the proclamation of the President on April 9, 1910, stating that "satisfactory evidence has been received that in Austria, Belgium, Chile, Costa Rica, Cuba, Denmark, France, Germany, Great Britain and her possessions, Italy, Mexico, the Netherlands and her possessions, Norway, Portugal, Spain and Switzerland, the law permits ... to citizens of the United States the benefit of copyright on substantially the same basis as to citizens of those countries," and proclaiming "that the citizens or subjects of the aforementioned countries are and since July 1, 1909, have been ent.i.tled to all the benefits of the said Act other than the benefits under section 1, (_e_), thereof, as to which the inquiry is still pending"--the exception being as regards mechanical music. To this list of countries, Luxemburg was added by proclamation of June 29, 1910, and Sweden by that of May 26, 1911.

{Sidenote: Mechanical music reciprocity}

Under date of December 8, 1910, the first proclamation with respect to the international protection of mechanical music was made by the President, declaring the existence of reciprocal relations with Germany.

Belgium, Luxemburg, and Norway were added by proclamation of June 14, 1911.

It may be repeated, to make the list complete, that by the ratification in 1908 of the Mexico City convention of 1902, Guatemala, Honduras, Nicaragua and Salvador, as well as Costa Rica, have reciprocal copyright relations with the United States, making in all twenty-four countries (including j.a.pan under the treaties excepting translations, and China under the limited provisions of the treaty of 1903) with which the United States has international copyright relations.

XIX

THE INTERNATIONAL COPYRIGHT MOVEMENT IN AMERICA

{Sidenote: Initial endeavor in America, 1837}

Simultaneously with the earliest legislation for international copyright among European states, there was a movement in the same direction in the United States. In the Twenty-fourth Congress, February 2, 1837, Henry Clay presented to the Senate an address of British authors asking for copyright protection in this country. This pet.i.tion was signed by Thomas Moore and fifty-five others, and was later supplemented by additional signatures and by an American pet.i.tion to the same effect.

{Sidenote: The British address}

The text of the address is as follows, the reference in paragraph seven being to a letter by Dr. M'Vickar, printed in the New York _American_, November 19, 1832:

"The humble address and pet.i.tion of certain authors of Great Britain, to the Senate and House of Representatives of the United States, in Congress a.s.sembled, respectfully showeth--

"1. That your pet.i.tioners have long been exposed to injury in their reputation and property, from the want of a law by which the exclusive right to their respective writings may be secured to them in the United States of America.

"2. That, for want of such law, deep and extensive injuries have, of late, been inflicted on the reputation and property of certain of your pet.i.tioners; and on the interests of literature and science, which ought to const.i.tute a bond of union and friendship between the United States and Great Britain.

"3. That, from the circ.u.mstance of the English language being common to both nations, the works of British authors are extensively read throughout the United States of America, while the profits arising from the sale of their works may be wholly appropriated by American booksellers, not only without the consent of the authors, but even contrary to their express desire--a grievance under which your pet.i.tioners have, at present, no redress.

"4. That the works thus appropriated by American booksellers are liable to be mutilated and altered, at the pleasure of the said booksellers, or of any other persons who may have an interest in reducing the price of the works, or in conciliating the supposed principles or prejudice of purchasers in the respective sections of your union: and that, the names of the authors being retained, they may be made responsible for works which they no longer recognize as their own.

"5. That such mutilation and alteration, with the retention of the authors' names, have been of late actually perpetrated by citizens of the United States: under which grievance, your pet.i.tioners have no redress.

"6. That certain of your pet.i.tioners have recently made an effort in defence of their literary reputation and property, by declaring a respectable firm of English publishers in New York to be the sole authorized possessors and issuers of the works of the said pet.i.tioners; and by publishing in certain American newspapers, their authority to this effect.

"7. That the object of the said pet.i.tioners has been defeated by the act of certain persons, citizens of the United States, who have unjustly published, for their own advantage, the works sought to be thus protected; under which grievance your pet.i.tioners have, at present, no redress.

"8. That American authors are injured by the non-existence of the desired law. While American publishers can provide themselves with works for publication by unjust appropriation, instead of by equitable purchase, they are under no inducement to afford to American authors a fair remuneration for their labours: under which grievance American authors have no redress but in sending over their works to England to be published, an expedient which has become an established practice with some of whom their country has most reason to be proud.

"9. That the American public is injured by the non-existence of the desired law. The American public suffers, not only from the discouragement afforded to native authors, as above stated, but from the uncertainty now existing as to whether the books presented to them as the works of British authors, are the actual and complete productions of the writers whose names they bear.

"10. That your pet.i.tioners beg humbly to remind your Honours of the case of Walter Scott, as stated by an esteemed citizen of the United States, that while the works of this author, dear alike to your country and to ours, were read from Maine to Georgia, from the Atlantic to the Mississippi, he received no remuneration from the American public for his labours; that an equitable remuneration might have saved his life, and would, at least, have relieved its closing years from the burden of debts and destructive toils.

"11. That your pet.i.tioners, deeply impressed with the conviction that the only firm ground of friendship between nations, is a strict regard to simple justice, earnestly pray that your Honours, the representatives of the United States in Congress a.s.sembled, will speedily use, in behalf of the authors of Great Britain, your power 'of securing to the authors the exclusive right to their respective writings.'"

{Sidenote: Henry Clay report, 1837}

The British address was referred to a select committee, whose members were Clay, Webster, Buchanan, Preston and Ewing, which reported favorably a bill for international copyright. The report took high ground in favor of the rights of authors:

"That authors and inventors have, according to the practice among civilized nations, a property in the respective productions of their genius, is incontestable; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. Authors and inventors are among the greatest benefactors of mankind.... It being established that literary property is ent.i.tled to legal protection, it results that this protection ought to be afforded wherever the property is situated.... We should be all shocked if the law tolerated the least invasion of the rights of property, in the case of merchandise, whilst those which justly belong to the works of authors are exposed to daily violation, without the possibility of their invoking the aid of the laws.... In principle, the committee perceive no objection to considering the republic of letters as one great community, and adopting a system of protection for literary property which should be common to all parts of it."

{Sidenote: A prophecy of world union}

The address of British authors and the Clay report called forth a little volume of "Remarks on literary property" by Philip H. Nicklin, a Philadelphia publisher, printed by his own firm of "law booksellers" in 1838, and dedicated to Henry C. Carey, which, though somewhat caustic in its criticisms of some of the arguments put forward by the British authors, heartily favored international copyright. The volume, in fact, contains a glowing prophecy of what was realized in large measure in the convention of Berne a half century later, the more interesting as coming from an American publisher, who was perhaps first to realize in thought the world-wide possibilities of the movement then in its beginnings. He suggested that Congress should empower the President to appoint commissioners to meet in Europe with similar representatives from other nations "to negociate for the enactment of a _uniform_ law of literary property, and the extension of its benefits to all civilised nations. It should be a new chapter of the _Jus Gentium_, and should be one law (_iisdem verbis_) for all the enacting nations, extending over their territories in the same manner as our law of copyright extends over the territories of our twenty-six sovereign states; so that an entry of copyright in the proper office of one nation should protect the author in all the others."

{Sidenote: "One just law"}

"Public opinion has made such progress in the various civilized nations, as would justify a great movement in favour of establishing a universal republic of letters; whose foundation shall be one just law of literary property embracing authors of all nations, and being operative both in peace and war. Besides the great impulse that would be given by such a law, to the improvement of literature and intellectual cultivation, the fellowship of interest thus created among the learned men throughout the world, would in time grow into a bond of national peace. Authors would soon consider themselves as fellow-citizens of a glorious republic, whose boundaries are the great circles of the terraqueous globe; and instead of lending their talents for the purpose of exasperating national prejudice into hostile feeling, to further the views of ambitious politicians, they would exert their best energies to cultivate charity among the numerous branches of the Human family, to rub off those asperities which the faulty legislation of the dark ages has bequeathed to the present generation, and to extend the blessings of christianity to the ends of the earth."

{Sidenote: Clay bills, 1837-42}

The Clay report, presented February 16, 1837, was accompanied by a bill drawn by Clay, extending copyright to British and French authors for works thereafter published, on condition of the issue of an American edition simultaneously with the foreign edition or within one month after deposit of the t.i.tle in America, but it never came to a final vote, though reintroduced by Clay in successive Congresses December 13, 1837, December 17, 1838, January 6, 1840, and January 6, 1842. In 1840, January 8, the bill was reported back from the Judiciary Committee without recommendation or approval. The bill was also introduced into the House of Representatives by John Robertson, July 7, 1838, and by J.

L. Tillinghast, June 6, 1840, but here also there was no action.

{Sidenote: Palmerston invitation, 1838}

An invitation was extended by Lord Palmerston in 1838 for the cooperation of the American government in an international arrangement with Great Britain, but nothing came of it.

{Sidenote: Efforts 1840-48}

Dr. Francis Lieber, a well-known publicist, addressed to Senator Preston, in 1840, a letter "On international copyright," prepared in cooperation with George Palmer Putnam, and issued in pamphlet form by the house of Wiley & Putnam. Charles d.i.c.kens's tour in 1841 stimulated interest in the subject, and there were high hopes of some result. In 1843 Mr. Putnam procured the signatures of ninety-seven publishers, printers, and binders to a pet.i.tion which was presented to Congress, setting forth that the absence of international copyright was "alike injurious to the business of publishing and to the best interests of the people." A counter-memorial from Philadelphia objected that international copyright "would prevent the adaptation of English books to American wants." No result came from these pet.i.tions, nor from one presented in 1848 by William Cullen Bryant, John Jay, George P. Putnam, and others.

{Sidenote: Everett treaty, 1853}

In 1852 a pet.i.tion for international copyright, signed by Washington Irving, James Fenimore Cooper and others, was presented to Congress; and in 1853 Edward Everett, then Secretary of State, negotiated through the American Minister in London, John F. Crampton, a treaty providing simply that authors ent.i.tled to copyright in one country should be ent.i.tled to it in the other, on the same conditions and for the same term. This treaty was laid before the Senate in a message from President Fillmore, February 18, 1853. The Committee on Foreign Relations of the Senate, through Charles Sumner, reported the Everett treaty favorably, but it was tabled in Committee of the Whole. Five New York publishers addressed a letter to Mr. Everett, supporting a convention, providing the work should be registered in the United States before publication abroad, issued here within thirty days after publication abroad, and wholly manufactured in this country. It was in this year that Henry C. Carey published his famous "Letters on international copyright," in which he held that ideas are the common property of society, and that copyright is therefore indefensible. Several remonstrances were also presented against the treaty from citizens of different states. The next year the amendatory article to the Everett treaty was laid before the Senate in a message from President Pierce of February 23, 1854, but no action resulted.

{Sidenote: Morris bills, 1858-60}

In the Thirty-fifth Congress in 1858, Edward J. Morris, of Pennsylvania, introduced into the House of Representatives a bill on the basis of remanufacture by an American publisher within thirty days of publication abroad, but it does not seem to have been considered, though it was reintroduced by him in 1860.

{Sidenote: International Copyright a.s.sociation, 1868}

The matter slumbered until 1868--after d.i.c.kens's second visit in 1867--when a committee consisting of George P. Putnam, S. Irenaeus Prime, Henry Ivison, James Parton, and Egbert Hazard issued an appeal for "justice to authors and artists," calling a meeting, which was held under the presidency of William Cullen Bryant, April 9, 1868. An International Copyright a.s.sociation was then organized, with Mr. Bryant as president, George William Curtis as vice-president and E. C. Stedman as secretary, whose primary object was "to promote the enactment of a just and suitable international copyright law for the benefit of authors and artists in all parts of the world." A memorial to Congress, asking early attention for a bill "to secure in all parts of the world the right of authors," but making no recommendations in detail, was signed by one hundred and fifty-three persons, including one hundred and one authors and nineteen publishers.

{Sidenote: Baldwin bill and report, 1868}

In the Fortieth Congress, in accordance with instructions to the Committee on the Library, moved by Samuel M. Arnell of Tennessee, January 16, 1868, to report on international copyright "and the best means for the encouragement and advancement of cheap literature and the better protection of authors,"--a bill was introduced in the House, February 21, by J. D. Baldwin of Ma.s.sachusetts, which provided for copyright on foreign books wholly manufactured here and published by an American citizen. The Committee's report said: "We are fully persuaded that it is not only expedient, but in a high degree important to the United States to establish such international copyright laws as will protect the rights of American authors in foreign countries and give similar protection to foreign authors in this country. It would be an act of national honor and justice in which we should find that justice is the wisest policy for nations and brings the richest reward." The bill was, however, recommitted and never more heard of.