Kitabı oku: «Copyright: Its History and Its Law», sayfa 19

XVI
IMPORTATION OF COPYRIGHTED WORKS

Copyright and importation

The right to import a copyrighted book and, conversely, the right to exclude importation are rights incident to the general "exclusive right" of an author or copyright proprietor. This is recognized, in terms or inferentially, in the copyright law of most countries; and the American copyright code is exceptional and almost without precedent, save that of the preceding American law of 1891, in specifically permitting the importation of copyrighted books in stated cases, without the consent or authority of the copyright proprietor.

Fundamental right of exclusion

As Senator O. H. Platt in the copyright debate of 1891 said: "The fundamental idea of a copyright is exclusive right to vend, and the prohibition against importation from a foreign nation is necessary to the enjoyment of that right. The privilege of controlling the market is indeed essential." The copyright laws of foreign countries, and our own copyright legislation previous to 1891, carefully safeguard this right. When an author cannot assure to an American publisher the American market he cannot get from that publisher the price he would otherwise secure. In the "international copyright amendment" of 1891, Congress accompanied the manufacturing clause, which prohibited the importation of foreign copies even with the consent of the author, by a proviso permitting certain importations even without the consent of the author – on the homœopathic principle of off-setting one restriction upon authors' rights by another restriction upon authors' rights.

General prohibitions

Exceptions permitted

In general the law prohibits absolutely the importation of "piratical copies" or of works bearing a false notice of United States copyright; it also prohibits, even though with consent of the author and the copyright proprietor, the importation in the case of works subject to the manufacturing clause, of any copies not manufactured in this country – but this prohibition does not apply to books in raised characters for use of the blind; to foreign-made periodicals containing authorized copyright matter; to authorized copies of a work in a foreign language of which only an English translation has been copyrighted here; or to authorized copies published abroad when imported under specified exceptional circumstances. These exceptions permit the importation of authorized copies for individual use and not for sale, not more than one copy at a time (excepting a foreign reprint of a book by an American author); or by or for the United States; or by or for stated educational institutions, including libraries, not more than one copy at one time; or when parts of collections or libraries purchased and imported en bloc, or of personal baggage. Books imported under these exceptions cannot be adduced in defense of infringements, as the law specifically provides, e. g., as when such a book contains no proper United States copyright notice. Copies unlawfully imported may be seized and forfeited like other contraband importations under regulations of the United States Treasury, but it is provided that importations through the mails or otherwise may be returned to the country from which the importation is made on petition to the Secretary of the Treasury when there is no evidence of negligence or fraud. The Secretary of the Treasury and the Postmaster-General are jointly required to make regulations against unlawful importation through the mails.

These provisions, it may be noted, are a singular mixture, almost without precedent, of acceptance and denial of the "exclusive right" of the author or copyright proprietor.

Text provisions

In respect to the importation of books in relation with copyright, the provisions of the American code as to prohibition and limited permission are specific and detailed, as follows:

Prohibition of piratical copies

"(Sec. 30.) That the importation into the United States of any article bearing a false notice of copyright when there is no existing copyright thereon in the United States, or of any piratical copies of any work copyrighted in the United States, is prohibited.

Permitted importations

"(Sec. 31.) That during the existence of the American copyright in any book the importation into the United States of any piratical copies thereof or of any copies thereof (although authorized by the author or proprietor) which have not been produced in accordance with the manufacturing provisions specified in section fifteen of this Act, or any plates of the same not made from type set within the limits of the United States, or any copies thereof produced by lithographic or photo-engraving process not performed within the limits of the United States, in accordance with the provisions of section fifteen of this Act, shall be, and is hereby, prohibited: Provided, however, That, except as regards piratical copies, such prohibition shall not apply:

"(a) To works in raised characters for the use of the blind;

"(b) To a foreign newspaper or magazine, although containing matter copyrighted in the United States printed or reprinted by authority of the copyright proprietor, unless such newspaper or magazine contains also copyright matter printed or reprinted without such authorization;

"(c) To the authorized edition of a book in a foreign language or languages of which only a translation into English has been copyrighted in this country;

"(d) To any book published abroad with the authorization of the author or copyright proprietor when imported under the circumstances stated in one of the four subdivisions following, that is to say:

"First. When imported, not more than one copy at one time, for individual use and not for sale; but such privilege of importation shall not extend to a foreign reprint of a book by an American author copyrighted in the United States;

"Second. When imported by the authority or for the use of the United States;

Library importations

"Third. When imported, for use and not for sale, not more than one copy of any such book in any one invoice, in good faith, by or for any society or institution incorporated for educational, literary, philosophical, scientific, or religious purposes, or for the encouragement of the fine arts, or for any college, academy, school, or seminary of learning, or for any State, school, college, university, or free public library in the United States;

"Fourth. When such books form parts of libraries or collections purchased en bloc for the use of societies, institutions, or libraries designated in the foregoing paragraph, or form parts of the libraries or personal baggage belonging to persons or families arriving from foreign countries and are not intended for sale: Provided, That copies imported as above may not lawfully be used in any way to violate the rights of the proprietor of the American copyright or annul or limit the copyright protection secured by this Act, and such unlawful use shall be deemed an infringement of copyright.

Seizure

Return of importations

"(Sec. 32.) That any and all articles prohibited importation by this Act which are brought into the United States from any foreign country (except in the mails) shall be seized and forfeited by like proceedings as those provided by law for the seizure and condemnation of property imported into the United States in violation of the customs revenue laws. Such articles when forfeited shall be destroyed in such manner as the Secretary of the Treasury or the court, as the case may be, shall direct: Provided, however, That all copies of authorized editions of copyright books imported in the mails or otherwise in violation of the provisions of this Act may be exported and returned to the country of export whenever it is shown to the satisfaction of the Secretary of the Treasury, in a written application, that such importation does not involve willful negligence or fraud.

Rules against unlawful importation

"(Sec. 33.) That the Secretary of the Treasury and the Postmaster-General are hereby empowered and required to make and enforce such joint rules and regulations as shall prevent the importation into the United States in the mails of articles prohibited importation by this Act, and may require notice to be given to the Treasury Department or Post Office Department, as the case may be, by copyright proprietors or injured parties, of the actual or contemplated importation of articles prohibited importation by this Act, and which infringe the rights of such copyright proprietors or injured parties."

Customs regulations as to importation of copyright articles and joint customs and postal regulations as to such importation through the mails, were issued under the law of 1909 under date of July 17, 1911, and are given in the appendix. As the copyright law forbids importation of copyright books not manufactured in this country, even with consent of the copyright proprietor, the customs regulations provide that copies imported with the copyright proprietor's assent shall be seized and destroyed by the government, while copies imported without the copyright proprietor's consent, being forfeited under the law to such proprietor, must be held by the customs authorities pending suit for forfeiture by the copyright owner or his abandonment of his right to such copies. Duties collected on books thus unlawfully imported are not refunded.

Supersedure of previous provisions

In relation especially to questions of importation, and in general, it is of first importance to note that the present code superseded by repeal, from July 1, 1909, all conflicting provisions, which practically means all previous copyright legislation, and that except as to infringement cases actionable at that date, the present code is the only copyright law.

The provision to this effect is (sec. 63): "That all laws or parts of laws in conflict with the provisions of this Act are hereby repealed, but nothing in this Act shall affect causes of action for infringement of copyright heretofore committed now pending in courts of the United States, or which may hereafter be instituted; but such causes shall be prosecuted to a conclusion in the manner heretofore provided by law."

Manufacturing clause affects earlier copyrights

This principle as construed by the Treasury Department (Treas. dec. no. 30316) especially affects copies whose status has been changed by the new form of the manufacturing proviso (sec. 15). A modification adds the condition that books must be printed from plates made from type set within the United States and printed and bound in this country. The Treasury Department has held in the case of an American edition of the "Key of Heaven" copyrighted under the law of 1891, by Benziger Brothers, of which sheets were sent abroad for binding, that the edition as bound abroad cannot be re-imported into the United States, although the sheets were manufactured here under the provisions of the law of 1891, previous to July 1, 1909. These books were accordingly denied importation and had to be returned to the country whence they were exported as bound. The opinion of Attorney-General Wickersham of November 17, 1909, on which the Treasury ruling was based, says:

"This language [of sec. 31] clearly embraces every American copyright in a book, regardless of whether that copyright was obtained under the copyright laws embodied in the Revised Statutes, or the act of 1891, or the copyright act of 1909. If the statute were otherwise, it would have produced the anomalous condition that books copyrighted prior to March 3, 1891, would not be prohibited from importation by any manufacturing provision; that books copyrighted after March 3, 1891, and prior to July 1, 1909, the date upon which the act of March 4, 1909, became effective, would be prohibited unless printed from type set in the United States or from plates made from type set in the United States, while books copyrighted after July 1, 1909, would be prohibited if not printed from type set in the United States or from plates made from type set therein, and the printing and binding both performed within the limits of the United States."

Importation of foreign texts

Where a work in a foreign language is copyrighted in the United States, it was held by the Secretary of the Treasury (Treas. dec. no. 22751) in 1901, on advice of the Attorney-General, under the act of 1891, in the case of Rostand's "L'Aiglon," that the original French edition must be denied importation under the prohibition feature of the manufacturing clause; but, as under the new code of 1909, "the original text of a work of foreign origin in a language other than English," is excepted from the manufacturing clause, it follows that such original text cannot be denied importation on copyright grounds, though importation might be restrained as a matter of equity by an assignee who had bought for the American market the right to publish here. In the case, however, of Liddel and Scott's Greek-English Lexicon, of which an American edition was copyrighted previous to the law of 1891, on a question raised by the American Book Co., the Secretary of the Treasury held in 1901 (Treas. dec. no. 22781) that the English edition could not be denied importation, as the law previous to 1891 did not contain the prohibition incident to the manufacturing clause. The Attorney-General in this case considered that while the clause against importation, being remedial, might affect prior copyright, yet as it particularly applied to books "so copyrighted" as not to be imported during the existence of "such copyright," it should be inferred that only books copyrighted under that act should be denied importation – the law in general being prospective in its effect. These two earlier opinions were taken into consideration in the opinion in 1909 by Attorney-General Wickersham, who held that the language of the new code did not warrant the same construction.

Printing within country

Under the law of 1891, the Secretary of the Treasury held in 1903 (Treas. dec. no. 24742) that books printed abroad from type set or plates made within the United States could not be prohibited importation under the manufacturing clause; but the clause has been so amended in the code of 1909 that printing in this country from type set within the United States or from plates made within the country from type thus set, is required as a condition of copyright, and copyright does not hold if any of these three conditions be neglected. It follows that in the case of books so copyrighted and manufactured, any other edition must be prohibited importation.

Innocent importation

An English decision holds that an importer is not innocent because he does not know that an importation includes copyright matter; and the wording of our law implies the same, though an American decision held that a partner or employer is not chargeable with statute penalties for acts done without his knowledge by a partner or agent.

Books not claiming copyright

An indirect and significant effect of the manufacturing proviso, in the nature of a "boomerang" to American industries, is to prevent the copyrighting of works which might otherwise be partly manufactured in America. Thus the American versions of the Book of Common Prayer and of Church Hymnals no longer seek American copyright, because the thin paper editions, as on "Oxford paper," are necessarily printed abroad and could not be imported if there were copyright on other editions which might be made in America. Baedeker's "United States," though dealing exclusively with and chiefly sold in this country, is not copyrighted, being protected rather by the cost of reproducing its German-made maps and text, and by its repute as a guide book and characteristic form, which might under the doctrine of "fair use" give its American publishers some common law protection against imitators.

Periodicals may be imported

Composite books not admitted

The code of 1909 permits the importation of periodicals containing copyright matter authorized by the copyright proprietor, though not manufactured in the United States, but this permissive exception does not extend to composite books; and under the law of 1891 the Treasury Department held that in the case of a book of poems, some of which were copyrighted in the United States, the book could not be imported unless the parts containing copyrighted poems had been printed from type set within the United States. Under this ruling, applied to the present law, foreign-made copies of books containing American copyrighted poems or other articles, must be denied importation, because these copyrighted portions were not type-set, printed and bound in this country. It is possible, however, that under the rule "de minimis non curat lex," a court might not justify the prohibition of books incidentally containing in small proportion poems, extracts or other negligible items of American copyright. Thus if an English cyclopædia contained copyrighted contributions by American authors, such cyclopædia would be denied admission unless such contributions might be adjudged a negligible proportion of the work.

Rebinding abroad

The prohibition of importation under the manufacturing proviso of copyrighted books not bound in this country, has been construed by the Attorney-General, in an opinion of March 1, 1910 (given in Treas. dec. no. 30414), to refer to original bindings and not to rebindings. "Manifestly a book is produced within the meaning of section 31 when it is printed and bound; and the binding required to be done in the United States is the original binding, the one which enters into the original production of the book. When the manufacture of the book is thus completed it is entitled to all the protection offered by the copyright laws, and it may be exported and thereafter imported at the pleasure of the owner. There is, furthermore, nothing in the act to indicate any intention that a book may be deprived of this protection or right of importation when it has once been acquired. If it shall become necessary or proper that the book be rebound it is not thereby made a new book, but remains the same book, the one that was printed and originally bound in the United States as required by the statute."

Importation of non-copyright translation

A curious question as to the prohibition of importation arose in connection with a Swedish translation of the "purity" books of the "Self and sex" series, by Dr. Sylvanus Stall, of Philadelphia, author and publisher of this series. The original works in this series are by an American author written and printed in English and manufactured and copyrighted in America; and there are translations into twenty or more languages authorized by the author but not copyrighted in the United States. The copyright proprietor made an importation of the Swedish translation without question, but the second importation was stopped by the customs authorities at Philadelphia on the ground that the Swedish translation was a copy of the American copyrighted work and must therefore be denied admission because not manufactured in America. On appeal, the Treasury Department, June 23, 1910, overruled the local authorities and admitted the translation made in Sweden, and bearing no copyright notice, as a work "of foreign origin in a language other than English."

Books dutiable

Copyright protection and tariff "protection" are often spoken of as related with each other, chiefly because in this country the importation of books for libraries is, to a limited extent, free from tariff duties as well as from copyright restrictions. There is no real relation between them, but the sections of the American tariff of 1910 dealing with books and works of art may be cited for the convenience of importers:

"(416) Books of all kinds, bound or unbound, including blank books, slate books and pamphlets, engravings, photographs, etchings, maps, charts, music in books or sheets, and printed matter, all the foregoing wholly or in chief value of paper, and not specially provided for in this section, twenty-five per centum ad valorem; views of any landscape, scene, building, place, or locality in the United States on cardboard or paper, not thinner than eight one-thousandths of one inch, by whatever process printed or produced, including those wholly or in part produced by either lithographic or photogelatin process (except show cards), occupying thirty-five square inches or less of surface per view, bound or unbound, or in any other form, fifteen cents per pound and twenty-five per centum ad valorem; thinner than eight one-thousandths of one inch, two dollars per thousand: Provided, That the rate or rates of duty provided in the tariff Act approved July twenty-fourth, eighteen hundred and ninety-seven, shall remain in force until October first, nineteen hundred and nine, on all views of any landscape, scene, building, place, or locality, provided for in this paragraph, which shall have, prior to July first, nineteen hundred and nine, been ordered or contracted to be delivered to bona fide purchasers in the United States, and the Secretary of the Treasury shall make proper regulations for the enforcement of this provision."

Books on free list

The following are included in the "free list" and are therefore free from any duties:

"(516) Books, engravings, photographs, etchings, bound or unbound, maps and charts imported by authority or for the use of the United States or for the use of the Library of Congress.

"(517) Books, maps, music, engravings, photographs, etchings, bound or unbound, and charts, which shall have been printed more than twenty years at the date of importation, and all hydrographic charts and publications issued for their subscribers or exchanges by scientific and literary associations or academies, or publications of individuals for gratuitous private circulation, and public documents issued by foreign governments.

"(518) Books and pamphlets printed chiefly in languages other than English; also books and music, in raised print, used exclusively by the blind.

"(519) Books, maps, music, photographs, etchings, lithographic prints, and charts, specially imported, not more than two copies in any one invoice, in good faith, for the use and by order of any society or institution incorporated or established solely for religious, philosophical, educational, scientific, or literary purposes, or for the encouragement of the fine arts, or the use and by order of any college, academy, school, or seminary of learning in the United States, or any state or public library, and not for sale, subject to such regulations as the Secretary of the Treasury shall prescribe.

"(520) Books, libraries, usual and reasonable furniture, and similar household effects of persons or families from foreign countries, all the foregoing if actually used abroad by them not less than one year, and not intended for any other person or persons, nor for sale."

Library free importation

The provisions as to importation for libraries are made unnecessarily onerous by Treasury regulations intended to insure the identification of the actual copies so imported. In practice such copies are usually imported by library agents acting for the library and not only must these agents make oaths and present evidence of authorization from the library authorities, but the librarian must certify to the receipt of the individual copy, before it can be technically cleared from the custom house through which it is imported, and the importer relieved from further liability. Blank forms for these purposes are prescribed and provided by the Treasury Department.

Copyrights and the free list

The question whether copyrighted works could be imported because they were included under the free list of the tariff came before the Treasury Department in 1901. With respect to copyrighted music, the Attorney-General considered the two questions whether the copyright law prohibits the importation of copyright music and whether the free list in the tariff constitutes an exception to the copyright law. He held as to the latter that the tariff is to prescribe certain duties on importations; it is not designed to authorize importation. It simply provides when and under what circumstances certain articles are exempt from duty. Accordingly copyrighted musical compositions are not taken out of the effect of the copyright law. The Secretary of the Treasury ruled (Treas. dec. no. 23225), in accordance with this advice, that copyrighted music was prohibited importation, – but this refers to importation without consent of the copyright proprietor.

The duty on books

Although not of copyright bearing, the significance in respect to importations of books of the newly added phrase "wholly or in chief value of paper" in the tariff act of 1909, which otherwise continued the 25 per cent duty on books, may here be mentioned, as of importance to importers. It was included in the Payne tariff, apparently at the instance of the bookbinding interests, and was at first construed by the local customs authorities at New York to make books bound in leather subject to the 40 per cent duty on leather, and books bound in silk subject to the 50 per cent duty on silk, as the component parts of chief value. The Secretary of the Treasury has, however, overruled this view and admitted books thus bound under the 25 per cent duty on the ground that "the limitation placed upon the paragraph by the addition of the words not found in the previous law was intended to exclude from that rate, books bound in such fancy or costly bindings as to be imported not on account of their intrinsic literary merit or their value as books." The Board of General Appraisers has since, however, rendered a decision supporting the local appraisers.

British prohibition of importation

In Great Britain the copyright act of 1842 (sec. 17) provided that any printed books, copyright in the United Kingdom, imported "for sale or hire" as reprinted out of the British dominions otherwise than by "the proprietor of the copyright or some person authorized by him" should be forfeited, seized and destroyed by any customs or excise officer, and the Customs act of 1843, setting forth that "great abuse had prevailed with respect to introduction for private use," prohibited importation for use as well as for sale or hire. The international copyright act of 1844 (sec. 10) excepted importations from the country "in which such books were first published," but this act did not in terms repeal the provisions of the acts of 1842 and 1843, and in the leading case of Pitt Pitts v. George, in 1896, the Court of Appeal, two judges to one, decided that this exception was inconsistent with the previous acts and not good law. In this case an English music publisher who had purchased British copyright in Raff's "La Fileuse," sued to restrain the importation of the original German edition. The lower court, relying on the statute of 1844, refused relief, but the Court of Appeal granted an injunction, holding, through Judge Lindley, that the complete exclusion given to the British proprietor by the act of 1842 "is most in accordance with legal principles and good sense." It was further held that where the copyright had been divided, the words "the proprietor of the copyright" indicate the owner of the English rights, and that if he had to "submit to an unlimited importation of books lawfully printed in any part of Germany itself," the British copyright "would be absolutely worthless, and the beneficial object frustrated," and protection by covenant with the original proprietor is by no means adequate.

Foreign reprints

The colonial copyright act of 1847, usually known as the foreign reprints act, authorized suspension by the Crown of the prohibition of importation of foreign reprints, in any colony enacting "reasonable protection to British authors" – which protection, in the twenty colonies in which the act was availed of, usually took the shape of a stated duty to be paid as royalty to the British copyright proprietor. The customs consolidation act of 1876 continued the general prohibition, on condition of notice by the proprietor of the British copyright to the Commissioners of Customs.

Divided market

Thus the British copyright and customs law recognizes the subdivision of copyright territory for the exclusive control of a market, and excludes accordingly foreign reprints whether piratical copies or authorized foreign editions like the Tauchnitz series, and the original foreign edition as well. In theory, if not in practice, a Tauchnitz copy in the pocket of a traveler is subject to seizure, and written authority from the copyright proprietor is technically necessary for the importation of a single copy, apparently without exception in favor of the British Government or the libraries.

The new British code

The new British measure continues these provisions as embodied in the customs consolidation act of 1876 and the revenue act of 1889 and in the text of the new act. Copyright is infringed by any person who "imports for sale or hire any work … which to his knowledge infringes copyright." Importation is prohibited of copies made out of the United Kingdom, which if made therein would infringe copyright and as to which the owner of the copyright gives written notice to the Commissioners of Customs in accordance with regulations by the Commissioners, which regulations may apply to all works or to different classes. The Isle of Man is specifically excepted from the United Kingdom in respect to this section. But the section is made applicable with the necessary modifications to any included British possession in respect to copies made out of that possession. The text of the new measure, retaining the phrase "for sale or hire" from the act of 1842 and reaffirming the customs act of 1876, which makes no such exception, continues an unfortunate ambiguity as to the importation of copies for private use, but precedent and court decisions favor the complete control of the market by the copyright proprietor through the complete exclusion of foreign copies.