R. R. (Richard Rogers) Bowker.

Copyright, its history and its law: being a summary of the principles and ... online

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ings, issued separately as well as for book illustration,
unless these represent foreign subjects or illustrate
a scientific work or reproduce a work of art.
Changes The provision of 1 909 differs from the provision

X89X-X909 of 1 891 in requiring that a book should be from plates
type-set as well as made, and be printed and bound,
within the United States, in adding periodicals and
by omitting photographs and dropping the word



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MANUFACTURING PROVISIONS 155

chromo, and including photo-engravings as well as
lithographs. The inclusion of binding in the manu-
facturing provision met with especial opposition, on
the ground that binding b not an int^jal part of,
but an incidental addition to, a completed book.

The effect of these provisions, to cite specific in- Gemuui-
stances, is that an original German text by a non- ^«ric«n
American author is exempt from the manufacturing
provisions, but that a French translation or an Eng-
lish translation b not, and that an original German
work by an American author must be manufactured
in this country to obtain protection, and that the
American author printing his work in English abroad
may claim ad interim protection but can obtain no
substantial benefit from it. In case a German-Ameri-
can citizen, or German resident of this country, writes
a book in the German language and prints it first
in Berlin, he can have no American copyright in
the German edition; and if copies of such an edition,
without copyright notice, should reach the United
States previous to manufacture and publication of
the work here, any one would have the right to re-
print it, and thework would be practically dedicated
to the public, while the copyright notice could not be
affixed to such foreign printed edition without viola-
tion of the law. If, however, the German work were
a translation made by or for the author of a work
written in English, the general copyright of the Eng-
lish work would cover the German edition, but the
German copies could not then be imported.

A drama copyrightable as such under subsection Drasuu
(d) is not subject to the manufacturing provision, «»cepted
unless classified as a book under subsection (a). A
printed drama was held not to be subject as a
book to the manufacturing provision in Hervieu v.
Ogilvie, in the U. S. Circuit Court, by Judge Martin



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156 COPYRIGHT

in 1909, and this decision under the old law is appli-
cable to the new code.
Eicepticmof The exception of "the original text of a book of
'^tote'^ foreign origin in a language or languages other than
English," — drafted by the author of the present
volume, introduced at the instance of the American
(Authors) Copyright League, as the McCall bill with
the assent of the representatives of the typographical
unions responsible for the manufacturing provision,
— was included to assure a real reciprocity in copy-
right with continental and other non-English na-
tions. The exception is repeated toward the close of
the section in the somewhat wider phrase "books of
foreign origin in a language or languages other than
English," which omits restriction to "the original
text"; but it is probable that the second phrasing
would be construed in conformity with the first, as
the evident intention of the law.
Ezception of The exception from lithographs and photo-en-
foreign iUos- gravings of subjects which "are located in a foreign
j^^^ ® *^ " country and illustrate a scientific work or reproduce
a work of art" is intended to permit the importa-
tion, either separately or for book use, of direct re-
productions made abroad of scenes or objects which
otherwise could be reproduced in this country only
indirectly and at second-hand; the confusing and
probably careless use of the word "and " might seem
to exclude from the exemption a lithograph or photo-
engraving of a natural scene, illustrating a work of
travel, but the courts might here feel justified in tak-
ing the more liberal view.
Affidavit To the manufacturing provision of the previous

requirement j^w has been added a new affidavit requirement
(sec. 16) as follows:

"That in the case of the book the copies so de-
posited shall be accompanied by an affidavit, under



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MANUFACTURING PROVISIONS 157

the official seal of any officer authorized to administer
oaths within the United States, duly made by the
person claiming copyright or by his duly authorized
agent or representative residing in the United States,
or by the printer who has printed the book, setting
forth that the copies deposited have been printed
from type set within the limits of the United States
or from plates made within the limits of the United
States from type set therein; or, if the text be pro-
duced by lithc^^phic process, or photo-engraving
process, that such process was wholly performed
within the limits of the United States, and that the
printing of the text and binding of the said book have
also been performed within the limits of the United
States. Such affidavit shall state also the place where
and the establishment or establishments in which
such type was set or plates were made or lithographic
process, or photo-engraving process or printing and
binding were performed and the date of the comple-
tion of the printing of the book or the date of publi-
cation."

In preparing the affidavit, which is necessary for Avoidance
books only, the applicant should be careful to note ^ errors
the following points, as to which errors are conmionly
made. The affidavit should correspond exactly with
the application (as that with the title-page or other
data in the work itself) . The affidavit cannot be made
till after publication and must state the exact day of
publication or the date of completion, either or both,
which last means not necessarily the completion of
printing the whole edition, but of the deposit copies.
The affidavit must be taken and signed by an indi-
vidual, not by a corporation, company or firm as
such, and the affiant must state whether he is the
claimant, agent of the claimant, or printer, striking
out the other designations. The name of the printer



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158 COPYRIGHT

and binder must be given in the affidavit with city
and state (but not street) address; but this means
the printing and binding establishment and not the
individual type-setter or binder. If the book is not
bound but only issued in paper, the word '* unbound "
should be written into the affidavit. It is necessary
to give the venue, that is, the county and state in
which the affidavit is made, and to take the oath
before a notary or other official authorized to take
such oath in that locality (not merely a justice of
the peace). The affiant's and notary's names should
be signed exactly as written into the body of the affi-
davit, and the seal should correspond exactly with
the name of the official and the ventce. The signature
of the affiant and of the notary and the seal are all
necessary to validate the affidavit. The names and
other writing should be written plainly, and the
affiant should make sure to read the affidavit and
compare it with the application and with the book.

Forfettora by In case of false affidavit, forfeiture of copyright is

fdse affidavit provided (sec. 17) as follows:

"That any person who, for the purpose of obtaun-
ing registration of a claim to copyright, shall know-
ingly make a false affidavit as to his having complied
with the above conditions shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be
punished by a fine of not more than one thousand
dollars, and all of his rights and privileges under said
copyright shall thereafter be forfeited."

Exact com- The affidavit clause is exact and specific. It may

?!!^™-. ^ made either by the printer or the publisher. This
exacting and drastic addition to the manufacturing
clause met with strong opposition from the friends of
copyright, particularly authors and book publishers, as
unnecessary and unreasonable, but was successfully
insisted upon by the representatives of the typo-



necessary



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MANUFACTURING PROVISIONS 159

graphical unions. The voiding of copyright because
of a false affidavit by a printer or publisher, which
might even be mistakenly made and of which the
author would have no cognizance, was opposed as
especially unjust to authors and out of keeping with
the rest of the law. Under the statute as enacted, this
provision must be exactly complied with, and the
courts would doubtless enforce it to the letter.

The manufacturing provision of 1891 and its ex- importatkin
tension in the code of 1909 have raised important and q^wtioiis
difficult questions as to the time at which these pro-
visions become effective in relation with copyrights
previously existing. It was claimed by Benziger
Brothers, as proprietors of a copyright American edi-
tion of the " Key of Heaven," that an edition of sheets
printed in America previous to the law of 1909 and
sent abroad for binding, could be reimported not-
withstanding the new provision against binding, but
the decision of the appraisers at New York against
this claim was upheld by the Secretary of the Treas-
ury, under advice of the Attorney-General, and the
courts have not yet had occasion to pass on the ques-
tion. This ruling indicates that since July i, 1909,
copyright could not be maintained on any book unless
type-set, printed and bound completely within the
limits of the United States, and that any copyrighted
books, partly manufactured in the United States,
but bound and otherwise completed abroad since
July 1 , 1909, must be denied importation. It has been
decided, however, by the Attorney-General, that the
manufacturing requirement as to binding refers only
to the original, and that copyright books rebound
abroad cannot be denied importation. Also it has
been held that a foreign translation of a copjrright
work, for which translation American copyright is
not claimed, cannot be refused importation.



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i6o COPYRIGHT

The provisions supplementing the manufacturing
clause by prohibiting importation are given in the
chapter on importation.
Foreign man- Holland is the only country in Europe which re-
'^^^S?* quires that the deposit copies shall be printed within
^^ "* the country and thus makes manufacture a condi-
tion of copyright — an inheritance probably from
the times when the printer-publishers of the Prot-
estant Netherlands were the only ones printing the
books barred in Catholic countries by the index ex-
pur gatoriusy and when deposit was naturally required
from them. The law covered the Dutch West Indies,
and the precedent was followed in Siam; and in the
Transvaal and Orange State the Dutch law continued
after they had beconie English colonies. Otherwise
than in these countries, only the British dominions of
Canada and Newfoundland and the Conmionwealth
of Australia have manufacturing provisions. Canada
made such provision as to domestic copyright in 1886
and again in the act of May 2, 1889, which last pro-
vides that a literary, scientific, musical or artistic work
shall, before or simultaneously with publication or pro-
duction elsewhere, be registered in the office of the
Minister of Agriculture, and be printed or published or
produced in Canada within one month after publica-
tion or production elsewhere. Newfoundland in its
statute of 1892, following our own of 1891, provided
similarly that the condition for obtaining copyright
shall be that the literary, scientific or artistic work shall
be printed and published or produced in this colony.
Australia, under the new code of 1905, confines
domestic copyright to books (inclusive of drama)
" printed from type set up in Australia, or plates made
therefrom, or from plates or n^atives made in Aus-
tralia in cases where type is not necessarily used,"
and in an artistic work to those " made in Australia."



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MANUFACTURING PROVISIONS i6i

Unfortunately, the precedent of our copyright act Bs^^ish
of 1891 has since been followed in England in the JJ^JJ^
patent and designs act of 1907, which provides (sec. ^^^^
27) that a patent may be revoked after four years
"on the ground that the patented article or process
is manufactured or carried on exclusively or mainly
outside the United Kingdom." Such a provision had
been a feature of the patent laws of Germany, Can-
ada and other countries, but it is new in British law
and has evoked strong protest from American pat-
entees, notwithstanding that it is parallel with our
manufacturing provision with respect to copyrights.



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XI



DramatiitB'
andcom-
posofs fighti



American
piro?iiioii0



Copyri^t

Office

deflnitiona



DRAMATIC AND MUSICAL COPYRIGHT, INCLUDING
PLAYRIGHT

The dramatic author and the musical composer re-
ceive recompense for their creative labor not so much
from publication of their works in the printed form
of a book as through their performance or represen-
tation, when protected as playright or performing
right, as the artist receives remuneration not only
for the reproduction and sale of copies, but also from
the exhibition as well as sale of his original work.
Dramatic and musical copyright, in the wide sense,
therefore, covers copyright in the specific sense and
playright, as to which latter common law rights es-
pecially need statutory protection.

In the protection of dramatic and musical compo-
sitions the new American code specifically provides
not only for copyright, but for playright or right of
performance. Under subject-matter of copyright
(sec. 5) such works are classified as "(d) Dramatic
or dramatico-musical compositions; (e) Musical com-
positions" ; and the Copyright Office Rules and Regu-
lations further define these classes as follows:

"8. (d) Dramatic and dramaticO'tnusical composi-
tions, such as dramas, comedies, operas, operettas
and similar works.

"The designation 'dramatic composition' does not
include the following: Dances, ballets, or other chore-
graphic works; tableaux and moving picture shows;
stage settings or mechanical devices by which dra-
matic effects are produced, or ' stage business ' ; animal



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DRAMATIC AND MUSICAL 163

shows, sleight-of-hand performances, acrobatic or
circus tricks of any kind; descriptions of moving pic-
tures or of settings for the production of moving pic-
tures. (These, however, when printed and published,
are registrable as 'books/)

"9. DratmUico-musical compositions include prin-
cipally operas, operettas, and musical comedies, or
similar productions which are to be acted as well as
sung.

"Ordinary songs, even when intended to be sung
from the stage in a dramatic manner, or separately
published songs from operas and operettas, should be
r^stered as musical compositions, not dramatico-
musical compositions.

"10. (e) Musical compositions^ including other
vocal and all instrumental compositions, with or
without words.

"But when the text is printed alone it should be
registered as a ' book,' not asa ' musical composition.' "

To dramatic and musical authors are given (sec. i) Rights
in addition to the general right, granted in subsec- •mw«<I
tion "(a) To print, reprint, publish, copy and vend
the copyrighted work," the specific exclusive rights:

" (b) . . . to dramatize it if it be a non-dramatic
work; to convert it into a novel or other non-drama-
tic work if it be a drama; to arrange or adapt it if it be
a musical work; . . .

"(d) To perform or represent the copyrighted Dnunatie
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 transcrip-
tion 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 re-
produced ; and to exhibit, perform, represent, produce.



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i64



COPYRIGHT



Musical
rights



Excepted
peffofinsiice



or reproduce it in any manner or by any method
whatsoever;

"(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";
— to which provision of subsection (e), in respect
to copyright control of mechanical records, are added
provisos that such control shall not extend to com-
positions published and copyrighted before July I,
1909, and works of foreigners whose state does not
grant similar right to American citizens, and shall be
subject to compulsory license arrangements, requiring
that if the author permits any mechanical reproduc-
tion, he shall license any manufacturer under condi-
tions stated in detail in die act, all of which exceptions
and conditions are fully stated in the chapter on
mechanical music provisions.

An exception to these exclusive rights is, however,
made in the proviso (sec. 28) ** Provided, however:
That nothing in this Act shall be so construed as to
prevent the performance of religious or secular works,
such as oratorios, cantatas, masses, or octavo choruses
by public schools, church choirs, or vocal societies,
rented, borrowed, or obtained from some public
library, public school, church choir, school choir, or
vocal society, provided the performance is given for
charitable or educational purposes and not for
profit."

This proviso is singularly defective in phraseology,
as the phrase ''octavo choruses" has no musical sig-
nificance and uses a music-trade term to designate



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DRAMATIC AND MUSICAL 165

choruses usually but not necessarily published in oc-
tavo form; and the duplication of the words " public
school," etc., is probably a verbal error in the bill
which mistakenly became part of the law. The pro-
viso is doubtless intended and would fairly be con-
strued to permit gratuitous unauthorized performance
of religious or secular works such as oratorios, can-
tatas, masses, and choruses by public schools, church
choirs, school choirs or vocal societies, from copies
rented, borrowed, or obtained from some public
library, provided the performance is given for chari-
table or educational purposes and not for profit.
Curiously the letter of the proviso would seem to pro-
vide that the beneficiary organization cannot per-
form from a purchased copy, but only from copies
rented, borrowed or "obtained from" some public
source; but this also is an evident error.

It should be noted that the omission from subsec- Peffomiance
tion (d) as to drama and the inclusion in subsection "'orproflt"
(e) as to music, of the words " for profit," — doubtless
with the intent of assuring to the individual pur-
chaser of music the right to perform it privately, —
have significance here, and serve, it would seem, to
give the dramatic author absolute control even over
gratuitous performances and to limit the control of
the musical author to performances which are not
gratuitous, a negative provision covering, and giving
much wider latitude than, the proviso (sec. 28) above
cited. But as dramatico-musical compositions are
classified (sec. 5, d) with dramatic compositions, and
an oratorio and possibly a cantata might be consid-
ered as a dramatico-musical composition, the proviso
(sec. 28) may have a specific effect as to this kind of
dramatico-musical compositions. The law is unfor-
tunately defective and confusing by reason of this
proviso and will be so difficult of judicial construc-



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COPYRIGHT



Works not
reprodocod



Copjiii^t
notice



Dramntlco-
nmaical
works pftH
toctod from

ropfodoction



tion as to suggest the omission, by amendment, of
this proviso. The use of the word "public" in both
cases implies that the author cannot control private
representation and opens other questions difficult of
judicial interpretation.

It is provided (sec. ii) : "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 dramatic or musical composition"; pro-
vided that the required deposit of two copies shall be
made, as in the case of books, on publication there-
after by the multiplication and public sale or dis-
tribution of copies.

The notice of copyright must be printed (sec. i8)
on each copy, as in the case of a book in the form
"Copyright" or the abbreviation "Copr.," "accom-
panied by the name of the copyright proprietor" and
"the year in which the copyright was secured by
publication." In the case of a published dramatic
work the notice must be placed, as in the case of a
book, upon the title-page or the page immediately
following, but in the case of a published musical work
the law provides that the notice "shall be applied . . .
either upon its title-page or the first page of music,"
and this specification makes the copyright notice
of doubtful validity if applied in a musical work on
the page following the title-page, unless this is the
first page of music.

The classification of dramatico-musical composi-
tions under subsection (d) as dramatic works and not
under subsection (e) as musical compositions, defines
an opera and possibly an oratorio or cantata as a
dramatic rather than a musical composition. As the
dramatic author is given (sec. i, d) the comprehen-
sive rights over reproduction "in any manner or by



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DRAMATIC AND MUSICAL 167

any method whatsoever" while the musical author is
limited (sec. I, e) in respect to mechanical reproduc-
tions, it would seem to follow that the author of an
opera may retain absolute control over mechanical
reproduction, as the author of a non-musical drama
retains absolute control over phonographic or other
reproduction of his drama. This would seem to con-
fine the requirements that the author of a musical
composition permitting mechanical reproduction
should license any manufacturer, to musical compo-
sitions which are not dramatic, i. e., to instrumental
compositions or to songs and other vocal music not
associated with drama. As an overture to an opera
is an int^;ral part of the dramatico-musical compo-
sition, it would even seem that an overture which is
part of an opera, or possibly an orchestral introduction
or interlude in an oratorio or cantata, would not be
subject to the mandatory license provided as to musi-
cal compositions. But this question has not yet come
before the courts.

Dramatic and musical works are not mentioned Dramatic
in the manufacturing and affidavit provisions (sees. •«* muaicil
15, 16, 17) which are specifically confined to "the 7^dtem
printed book or periodical specified in section 5, mamifiictiir-
subsecdons (a) and (b)," while dramatic and musical ^Jf*^^"
compositions are classified in subsections (d) and (e).
It might be alleged that dramatic or musical com-
positions in book form or produced as books from
type or by lithographic or photo-engraving process
should be classified as books and subjected to the
manufacturing provisions; but this is distinctly not
the letter of the law. This exception was specifically
upheld for music in the case of Littleton v. Ditson
in 1894, by Judge Colt in the U. S. Circuit Court in
Massachusetts, where the defense that there was no
copyright in certain songs because the music sheets



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COPYRIGHT



British

colonial

practice



Entry under
proper daas



Applicationa
and certifi-
cates



were not from type set or plates made within the
United States, was overruled; and for drama in Her-
vieu V. Ogilvie in 1909, where in the U. S. Circuit Court
in New York, Judge Martin cited with approval Judge
Colt's decision. This ruling was also embodied in
Treasury decision No. 21012 of April 17, 1899, per-
mitting the importation of musical compositions copy*
righted in the United States and printed abroad.

The Australian law, on the contrary, specifically
includes under the definition of "book," a "drama-
tic work" and a "musical work," and thus subjects



Online LibraryR. R. (Richard Rogers) BowkerCopyright, its history and its law: being a summary of the principles and ... → online text (page 15 of 59)