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XXIII
THE LITERATURE OF COPYRIGHT

Bibliographical materials

The literature of copyright is extensive and its bibliography would now make a volume in itself. The bibliography of literary property prepared by Thorvald Solberg, now Register of Copyrights, for the Bowker-Solberg volume of 1886, occupying sixty pages, covered approximately fifteen hundred titles, besides analytical indexes to several periodicals. The bibliography to the present date, inclusive of that material, which Register Solberg has continued, would increase this record at least twofold. The copyright campaign resulting in the code of 1909 was especially prolific of drafts and bills, Congressional and other reports and private publications, of which "dry as dust" indication is given in the earlier chapter containing the record of that campaign. Nothing more can be attempted in this chapter than a brief glance over historical material and leading works.

Early history

The early history of copyright is to be traced only through incidental references in classical and medieval works. Among these may be instanced Montalembert's "Monks of the West" and Brown's "History of the printing press in Venice," previously cited. George Haven Putnam's work on "Books and their makers in the Middle Ages" (New York, Putnams, 1896-97, 8vo, 2 v., 459, 538 p.), though dealing chiefly with publishing relations, incidentally gives much information on the early history of printing privileges and copyrights proper. Several of the law book writers, notably Copinger, summarize in some measure the early history of copyright.

Early American contributions

Perhaps the earliest American publication distinctively on copyright was the "Remarks on literary property," by Philip H. Nicklin, in 1838, in which he included as an appendix a reprint of Joseph Lowe's summary of copyright history and practice up to 1819, from the Encyclopædia Britannica supplement, and argued for longer, if not perpetual copyright for our own authors, on the plea that "charity begins at home," as well as for international copyright throughout a world-wide republic of letters. The later movements in America for international copyright brought out much writing, though largely in periodical articles and pamphlets, among the most noteworthy of which were Dr. Francis Lieber's letter "On international copyright," of 1840, Henry C. Carey's "Letters on international copyright," of 1853, and "The international copyright question considered," of 1872, George Haven Putnam's monograph on "International copyright," of 1878, and Richard Grant White's "American view of the copyright question," of 1880.

Later American pamphleteers

During the copyright campaign leading to the act of 1891, several pamphlets were issued on behalf of the American (Authors) Copyright League, notably Rev. Dr. Henry van Dyke's "National sin of piracy," of 1888, and Prof. Brander Matthews's "Cheap books and good books," on the texts of James Russell Lowell's epigram, "There is one thing better than a cheap book, and that is a book honestly come by," and George William Curtis's words, "Cheap books are good things, but cheapening the public conscience is a very bad thing," – which last paper is reprinted in Putnam's "Question of copyright."

American treatises

The leading American law book writer has been Eaton S. Drone, later editor of the New York Herald, whose valuable "Treatise on the law of property in intellectual productions in Great Britain and the United States" (Boston, Little, Brown & Co., 1879, 8vo, 774 p.) covered comprehensively the general copyright legislation of 1870-74, and superseded the earlier standard American law book, George Ticknor Curtis's work of 1847, "Treatise on the law of copyright … as enacted and administered in England and America." The volume on "Copyright, its law and its literature," by R. R. Bowker and Thorvald Solberg (N. Y. Publishers' Weekly, 1886, 8vo, 136 p.), the latter furnishing the bibliography of copyright, included facsimile of the autograph signatures in the memorial of American authors of 1885, and a reprint of Sir James Stephen's digest of British copyright law, as well as the revised statutes, constituting the copyright law of the United States at that time. "The question of copyright," by George Haven Putnam (N. Y., Putnams, 1891, 12mo, 412 p.), brought into one compilation many of the important documents and articles, including the text of the act of 1891. A valuable digest of "Copyright cases, 1891-1903," American and English, was compiled by Arthur S. Hamlin for the American Publishers Copyright League (N. Y., Putnams, 1904, 8vo, 237 p.).

Copyright Office publications

The most valuable series of current publications on copyright are those issued from the Library of Congress by the Copyright Office, under Register Solberg's administration. The most important of these series is that of Copyright Office Bulletins issued at irregular intervals, of which No. 14 presents the current copyright law and No. 15, issued in 1910, gives the "Rules and regulations for the registration of claims to copyright" under the new law. No. 3, as issued in a second edition in 1906, contains the full text of "Copyright enactments of the United States, 1783-1906," and No. 8, issued in 1905, "Copyright in Congress, 1789-1904," contains a bibliographical and chronological record of all proceedings in Congress. Several bulletins were issued during the preparation of the law of 1909, of which the most important was No. 9, giving the "Provisions of the United States copyright laws with a summary of some parallel provisions of the laws of foreign countries." No. 5 covers copyright in England, presenting the full text of copyright acts from 1875 to 1902, including and supplementing Sir James Stephen's digest of British copyright law; No. 6, "Copyright in Canada and Newfoundland" up to 1903; No. 7, "Foreign copyright laws now in force" up to 1904; No. 11, "Copyright in Japan" up to 1906; and No. 13, the documents of the International Copyright Union, including the Berlin convention of 1908. Bulletins No. 1 and 2 cover the former copyright law and directions for registration under it. Many of these bulletins are already out of print. A minor series is that of Information circulars, of which forty-five have been published, many of them now out of date and superseded, covering from time to time current information as to laws, proclamations, treaties, etc., domestic and foreign, as well as opinions of the Attorneys-General, custom regulations and the like.

Labor report

A report on the effect of the international copyright law by the Commissioner of Labor, Carroll D. Wright, was presented to the Senate in 1901.

English contributions about 1840

Copyright literature in England is too extensive for more than brief reference here. "The great debate," led by Serjeant Talfourd on one side and Lord Macaulay on the other, is recorded in Hansard's Parliamentary Debates (third series, volume LVI of 1841), and the speeches of the two combatants are reprinted in their respective works. John James Lowndes's "Historical sketch of the law of copyright" was printed in 1840, with especial reference to Serjeant Talfourd's bill, and contained an appendix on the state of copyright in foreign countries – America, France, Holland and Belgium, the German states, Russia, Denmark, Norway and Sweden, Spain, and the Two Sicilies. "A plea for perpetual copyright," by W. D. Christie, was also put forth in 1840. Carlyle's caustic "Petition on the copyright bill" is included in his "Critical and miscellaneous essays."

Later English contributions

Among the later noteworthy contributions to the subject were the caustic denunciation of international piracy by Charles Reade, the novelist, under the title "The eighth commandment," reprinted in America by Ticknor & Fields, in 1860; Matthew Arnold's Fortnightly article of 1880, on "Copyright," printed in the volume of his collected works containing his "Irish essays"; John Camden Hotten's seven letters on "Literary copyright," in a volume of 1871; and Walter Besant's volume "The pen and the book," of 1899, containing a special chapter on copyright and literary property by G. H. Thring, Secretary of the British Society of Authors. Herbert Spencer made several contributions to the subject, some of which were reprinted in his "Various fragments."

English legal treatises

There had been published, so early as 1823, the first edition of Richard Godson's "Practical treatise on the law of patents for inventions and of copyright," which was immediately translated into French and became the standard English work, being supplemented in 1832 with an abstract of the laws in foreign countries and republished in a second comprehensive edition in 1840 by Saunders & Benning, London; in 1844 this second edition, with a supplement covering the recent laws, was reissued by W. Benning & Co., in an octavo of 700 pages, and in 1851 a separately published supplement by Peter Burke brought Godson's work up to that date. Another early English law book was Robert Maugham's "Treatise on the laws of literary property, comprising the statutes and cases; with an historical view and disquisitions," published by Longmans in 1828. The standard work of W. A. Copinger on "The law of copyright, in works of literature and art," first published in 1870 and reissued in a fourth edition, as edited by J. M. Easton (London, Stevens & Haynes, 1904, 8vo, 1155 p.), includes as well as English and American decisions, chapters on international copyright and on copyright in foreign countries, with full text of English and many foreign statutes, and many legal forms. A work by J. H. Slater covered "The law relating to copyright and trade-marks" (London, Stevens, 1884, 8vo, 466 p.), in the form of a digest of the more important English and American decisions. The writer of the York Prize Essay of the University of Cambridge for 1882, T. E. Scrutton, rewrote and extended his work under the title of "The law of copyright," later continued into a fourth enlarged edition (London, Clowes, 1893, 4 ed., 8vo, 356 p.). B. A. Cohen published a compact study of "The law of copyright" in 1896.

Birrell's lectures

Augustine Birrell, as Quain Professor of law at University College, London, delivered a series of lectures in 1898, of which seven were printed in his delightfully readable little volume on "The law and history of copyright in books" (London, Cassell, 1899, 12mo, 228 p.).

MacGillivray's works

The latest English law book writer is E. L. MacGillivray, whose "Treatise upon the law of copyright," British and American (London, Murray, 1902, 8vo, 439 p.) is extremely valuable as a case digest, with foot-note references to cases. This was followed by a brief "Digest of the law of copyright," English only, prepared by the same writer for the Publishers Association of Great Britain and Ireland (London, Butterworth, 1906, 12mo, 106 p.). The same association has printed annually from 1901, a digest of "Copyright cases," which are collected in two volumes, for 1901-04 and 1905-10 inclusive, also edited by Mr. MacGillivray.

English special treatises

Special English treatises on specific classes of copyright protection are Colles and Hardy's "Playright and copyright in all countries" (London, Macmillan, 1906, 8vo, 275 p.); Edward Cutler's "Manual of musical copyright law" (London, Simpkin, Marshall, 1905, 8vo, 213 p.); Reginald Winslow's "The law of artistic copyright" (London, Clowes, 1889, 8vo, 215 p.); Edmunds and Bentwich's "The law of copyright in designs" (London, Sweet & Maxwell, 1908, 2 ed., 8vo, 488 p.); Knox and Hind's "Law of copyright in designs" (London, Reeves & Turner, 1899, 8vo, 264 p.); and William Briggs's comprehensive treatise on "The law of international copyright" (London, Stevens & Haynes, 1906, 8vo, 870 p.), the most important publication in English in its field.

Parliamentary and Commission reports

The Parliamentary papers giving reports of special commissions, referred to in previous chapters, constitute an important part of the English literature of copyright, the most notable being the report of the Royal Copyright Commission issued in 1878, with Sir James Stephen's digest of the law as then existing, and a supplementary blue-book of evidence; the report of the Musical Copyright Committee appointed by the Home Department, of 1904; the report of the Law of Copyright Committee appointed by the President of the Board of Trade, of 1909, with accompanying minutes of evidence; and the minutes of the Imperial Copyright Conference of 1909. The new copyright bill has been four times printed in progressive form – on its first introduction, July 26, 1910, on its reintroduction, March 30, 1911, as it emerged from committee, July 13, 1911, and as it went to the Lords, August 18, 1911.

The pending Canadian bill has been printed only as introduced April 26, 1911, but the government has supplied an accompanying memorandum comparing its provisions with existing law.

Cyclopædias and digests

The American and English law cyclopædias and digests also give references to copyright cases and decisions, some in special chapters, more or less comprehensive of recent copyright interpretations.

French works

The most recent authoritative French works on literary property are Eugène Pouillet's "Traité théorique et pratique de la propriété littéraire et artistique" (Paris, Marchal & Billard, 3d ed., 1908, 1028 p.); Gustave Huard's "Traité de la propriété intellectuelle, v. 1. Propriété littéraire et artistique" (Paris, Marchal & Billard, 1903, 400 p.), and A. Huard and Édouard Mack's "Répertoire de législation, de doctrine et de jurisprudence en matière de propriété littéraire et artistique" (Paris, Marchal & Billard, 1909, 740 p.). An earlier elaborate work is that of Claude Couhin, "La propriété industrielle, artistique et littéraire" (Paris, Larose, 1894), in three volumes.

German works

For Germany the text of the general copyright law of June 19, 1901, of the law relating to figurative arts and photographs of January 9, 1907, and the amendatory law including mechanical music reproductions, May 22, 1910, should be consulted. Otto Lindemann's "Das Urheberrecht an Werken der Literatur und der Tonkunst" (Berlin, Guttentag, 1910, 3d ed., 16mo, 155 p.) is a brief compilation of and comment on these laws of 1901 and 1910. The most recent and authoritative general works are Prof. Josef Kohler's "Urheberrecht an Schriftwerken und Verlagsrecht" (Stuttgart, F. Enke, 1907, 527 p.), though some of his statements of theory have given rise to criticism and dispute, and his "Kunstwerkrecht" (Stuttgart, Enke, 1908, 191 p.), Daude's "Die Reichsgesetze über das Urheberrecht an Werken der Literatur und Tonkunst und das Verlagsrecht" (Berlin, Guttentag, 1910, 293 p.), and Dr. Albert Osterrieth's "Das Urheberrecht an Werken der bildenden Künste und der Photographie" (Berlin, Heymann, 1907, 312 p.).

Early German contributions

In the early German literature of copyright should be noted the works of Pütter, sometimes called the father of the modern theory of property in intellectual productions, who wrote as early as 1764, an edition of whose "Beyträge zum Teutschen Staats – u. Fürsten-Rechte" was published in Göttingen in 1777; and the tractate of Immanuel Kant, "Von der Unrechtmässigkeit des Büchernachdrucks," which may be found in his collected works.

Italian works

The most important Italian work of recent issue is that of Eduardo Piola-Caselli, "Del diritto di autore" (Naples, E. Marghieri, 1907, 875 p.), and earlier works of standard character are Enrico Rosmini's "Legislazione e jurisprudenza sui diritti d'autore" (Milan, M. Hoepli, 1890, 671 p.), and Pietro Esperson, "De' diritti di autore sulle opere dell'ingegno ne' rapporti internazionali" (Torino, Unione tipografico-editrice, 1899, 278 p.).

Spanish compendium

A useful compendium of Spanish copyright law of 1879 et seq., covering both the Peninsula and the ultramar colonies, was published in Havana by La Propaganda Literaria, in 1890, as edited with an interesting comparison of Spanish law with that of Great Britain and America by D. F. G. Garofalo y Morales.

International compilations

A most valuable compilation of the copyright laws and treaties of all countries, comprising a literal translation into German of about 250 acts, is "Gesetze über das Urheberrecht in allen Ländern," edited in a second edition by Prof. Ernest Röthlisberger (Leipzig, Hedeler, 1902, 418 p.), which was complemented by his summary of the domestic and international law of copyright in the different countries, "Der interne und der internationale Schutz des Urheberrechts," also in its second edition (Leipzig, Boersenverein der deutschen Buchhändler, 1904, 116 p.), comprising references or mentions covering fifty-seven countries and forty-nine colonies, especially the British colonies. With these should be mentioned "Recueil des conventions et traités concernant la propriété littéraire et artistique," published under the auspices of the Bureau of the International Copyright Union (Berne, Bureau de l'Union internationale, 1904, 8vo, 908 p.). These works are supplemented by the publication from month to month in the Droit d'Auteur of Berne, of which Prof. Röthlisberger is the editor, of new conventions, treaties, laws and other material, bringing world-information up to date.

APPENDIXES

I
UNITED STATES OF AMERICA: COPYRIGHT PROVISIONS

1. UNITED STATES COPYRIGHT CODE OF 1909

An Act to amend and consolidate the Acts respecting Copyright

Exclusive right to print, publish and vend

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right:

(a) To print, reprint, publish, copy, and vend the copyrighted work;

To translate, dramatize arrange and adapt, etc.

(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art;

To deliver lectures, sermons, etc.

(c) To deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production;

To represent dramatic works, or make record, or exhibit or perform, etc.

(d) To perform or represent the copyrighted work publicly if it be a drama or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever;

To perform music and make arrangement, setting, or record

Act not retroactive.

Music by foreign author

Control of mechanical musical reproduction

Royalty for use of music on records, etc.

Notice of use of music on records

License to use music on records

(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced: Provided, That the provisions of this Act, so far as they secure copyright controlling the parts of instruments serving to reproduce mechanically the musical work, shall include only compositions published and copyrighted after this Act goes into effect, and shall not include the works of a foreign author or composer unless the foreign state or nation of which such author or composer is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States similar rights: And provided further, and as a condition of extending the copyright control to such mechanical reproductions, That whenever the owner of a musical copyright has used or permitted or knowingly acquiesced in the use of the copyrighted work upon the parts of instruments serving to reproduce mechanically the musical work, any other person may make similar use of the copyrighted work upon the payment to the copyright proprietor of a royalty of two cents on each such part manufactured, to be paid by the manufacturer thereof; and the copyright proprietor may require, and if so the manufacturer shall furnish, a report under oath on the twentieth day of each month on the number of parts of instruments manufactured during the previous month serving to reproduce mechanically said musical work, and royalties shall be due on the parts manufactured during any month upon the twentieth of the next succeeding month. The payment of the royalty provided for by this section shall free the articles or devices for which such royalty has been paid from further contribution to the copyright except in case of public performance for profit: And provided further, That it shall be the duty of the copyright owner, if he uses the musical composition himself for the manufacture of parts of instruments serving to reproduce mechanically the musical work, or licenses others to do so, to file notice thereof, accompanied by a recording fee, in the copyright office, and any failure to file such notice shall be a complete defense to any suit, action, or proceeding for any infringement of such copyright.

Failure to pay royalties

In case of the failure of such manufacturer to pay to the copyright proprietor within thirty days after demand in writing the full sum of royalties due at said rate at the date of such demand the court may award taxable costs to the plaintiff and a reasonable counsel fee, and the court may, in its discretion, enter judgment therein for any sum in addition over the amount found to be due as royalty in accordance with the terms of this Act, not exceeding three times such amount.

Reproduction of music on coin-operated machines

The reproduction or rendition of a musical composition by or upon coin-operated machines shall not be deemed a public performance for profit unless a fee is charged for admission to the place where such reproduction or rendition occurs.

Right at common law or in equity

Sec. 2. That nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor.

Component parts of copyrightable work

Composite works or periodicals

Sec. 3. That the copyright provided by this Act shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this Act.

Works protected

Sec. 4. That the works for which copyright may be secured under this Act shall include all the writings of an author.

Classification of copyright works

Sec. 5. That the application for registration shall specify to which of the following classes the work in which copyright is claimed belongs:

(a) Books, including composite and cyclopædic works, directories, gazetteers, and other compilations;

(b) Periodicals, including newspapers;

(c) Lectures, sermons, addresses, prepared for oral delivery;

(d) Dramatic or dramatico-musical compositions;

(e) Musical compositions;

(f) Maps;

(g) Works of art; models or designs for works of art;

(h) Reproductions of a work of art;

(i) Drawings or plastic works of a scientific or technical character;

(j) Photographs;

(k) Prints and pictorial illustrations:

Classification does not limit copyright

Provided, nevertheless, That the above specifications shall not be held to limit the subject-matter of copyright as defined in section four of this Act, nor shall any error in classification invalidate or impair the copyright protection secured under this Act.

Compilations, abridgements, dramatizations, translations, new editions

Subsisting copyright not affected

Sec. 6. That compilations or abridgements, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain, or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works.

Not subject-matter of copyright: works in public domain; government publications

Sec. 7. That no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof: Provided, however That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgement or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor.

Copyright to author or proprietor for terms specified in Act

Foreign authors

Sec. 8. That the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act: Provided, however, That the copyright secured by this Act shall extend to the work of an author or proprietor who is a citizen or subject of a foreign state or nation, only:

Alien authors domiciled in U. S.

(a) When an alien author or proprietor shall be domiciled within the United States at the time of the first publication of his work; or

Authors, when citizens of countries granting reciprocal rights

International agreement

(b) When the foreign state or nation of which such author or proprietor is a citizen or subject grants, either by treaty, convention, agreement, or law, to citizens of the United States the benefit of copyright on substantially the same basis as to its own citizens, or copyright protection substantially equal to the protection secured to such foreign author under this Act, or by treaty; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States may, at its pleasure, become a party thereto.

Presidential proclamation

The existence of the reciprocal conditions aforesaid shall be determined by the President of the United States, by proclamation made from time to time, as the purposes of this Act may require.

Publication with notice initiates copyright

Sec. 9. That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section twenty-one of this Act.

Registration of copyright

Copyright certificate

Sec. 10. That such person may obtain registration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the register of copyright shall issue to him the certificate provided for in section fifty-five of this Act.

Copyright protection of unpublished works: lectures, dramas, music, etc.

Deposit of copies after publication

Sec. 11. That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be a lecture or similar production or a dramatic or musical composition; of a photographic print if the work be a photograph; or of a photograph or other identifying reproduction thereof if it be a work of art or a plastic work or drawing. But the privilege of registration of copyright secured hereunder shall not exempt the copyright proprietor from the deposit of copies under sections twelve and thirteen of this Act where the work is later reproduced in copies for sale.

Two complete copies of best edition

Periodical contributions

Work not reproduced in copies for sale

No action for infringement until deposit of copies

Sec. 12. That after copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly deposited in the copyright office or in the mail addressed to the register of copyrights, Washington, District of Columbia, two complete copies of the best edition thereof then published, which copies, if the work be a book or periodical, shall have been produced in accordance with the manufacturing provisions specified in section fifteen of this Act; or if such work be a contribution to a periodical, for which contribution special registration is requested, one copy of the issue or issues containing such contribution; or if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction provided by section eleven of this Act, such copies or copy, print, photograph, or other reproduction to be accompanied in each case by a claim of copyright. No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with.