Chapter LX: Section II: Nationality of the Author

Unfortunately the Acts of Congress are not clear as to how far the works of foreign authors, or the works of non-residents in the United States are protected.

Until 1891 the works of foreign authors not resident in the United States were denied protection. Sec. 4971 of the Revised Statutes ran as follows:

"Sec. 4971. Nothing in this chapter shall be construed to prohibit
the printing, publishing, importation, or sale of any book, map,
chart, dramatic or musical composition, print, cut, engraving, or
photograph, written, composed, or made by any person not a citizen
of the United States nor resident therein."[1338]

By the Act of 1891, the benefits of copyright are extended to the citizens of foreign countries which are proclaimed by the President as conferring reciprocal rights on American citizens. Sec. 4971 of the Revised Statutes is repealed. The Act of March 3, 1891, section 13, enacts--

"That this Act shall only apply to a citizen or subject of a
foreign state or nation when such foreign state or nation permits
to citizens of the United States of America the benefit of
copyright on substantially the same basis as its own citizens, 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 of
America may at its pleasure become a party to such agreement.
The existence of either of the 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."

The Act of March 3, 1891, section 5, amending the Revised Statutes, sec. 4959, enacts that--

"... the alterations, revisions, and additions made to books by
foreign authors heretofore published, of which new editions shall
appear subsequently to the taking effect of this Act, shall be
held and deemed capable of being copyrighted as above provided
for in this Act, unless they form a part of the series in course
of publication at the time this Act shall take effect." (July 1,
1891.)

On these sections two questions seem to be left open:

(1) Is the test to be applied the nationality of (_a_) the
author, or of (_b_) the proprietor of the manuscript,
or other unpublished work, at the time of publication;
or will it satisfy the Act if (_c_) either of these persons
complies with the requisite conditions of nationality?
(2) Will residence in the United States or in one of the
proclaimed countries confer the privileges on one
who is not a citizen or subject of any of them?

1. It may be that it would be a sufficient compliance with the requirements of the Act if either the author or his assignee before publication were a citizen of the United States, or a subject or citizen of a proclaimed country. Section 1 amending the Revised Statutes, sec. 4952, gives the sole liberty to "the author, inventor, designer, or proprietor, and to the executors, administrators, or assigns of any such person." Section 13 "applies the Act" to citizens or subjects of certain foreign states or nations. Under the Revised Statutes, section 4971, before 1891 it was the nationality of the author alone that was considered, and it would have been no answer to have said that the assignee before publication was an American citizen or resident in the United States. Perhaps in 1891 the benefit was designedly extended to assignees before publication, who complied with the conditions and who had taken assignments from foreign authors who did not. On the whole, however, I am inclined to the opinion that it will not do merely to allege that the assignee of the uncopyrighted and unpublished work is a citizen of the United States or a subject or citizen of one of the proclaimed countries. It must, I think, be alleged that the author, inventor, designer, or proprietor _ab initio_ has complied with the conditions as to nationality. By proprietor _ab initio_ (and probably this is the true meaning of "proprietor" in section 1 of the Act of March 3, 1891[1339]), I mean one who compiles a work by his servants or agents, for instance, a body corporate, which cannot be said to be an "author, inventor, or designer," and yet is entitled to the whole property in the work of its servants as it grows up from day to day. I have not considered the assignee after publication. I think it must be abundantly clear that his nationality cannot be taken as the test, since if he took his assignment from a foreign author who did not comply with the conditions of nationality when the work was published, the work at the time of assignment would have become _publici juris_. If he took his assignment from one who complied with the conditions of nationality and copyrighted the work, the fact of his being an alien would not prevent him acquiring the copyright already secured.

2. Before 1891 residence in the United States, which was interpreted to mean permanent residence and not merely for the purposes of publication,[1340] was sufficient to entitle an author to the privileges of the Copyright Acts. The provision now, under the Act of March 3, 1891, is that the Act shall only apply to a citizen of a foreign country which has been proclaimed. Reading the Act strictly a foreign resident in the United States but not a citizen thereof is excluded from protection which he formerly had, unless he is a citizen or subject of a proclaimed country. No doubt this was not intended to be the result of the Act of 1891, but the words are plain and unambiguous, and there seems no reason why they should not have effect according to their plain meaning. _A fortiori_ a foreigner resident in, but not a subject of, one of the proclaimed countries would not be entitled to copyright.

The following States have been proclaimed as fulfilling one or other of the required conditions, and their citizens are therefore entitled to acquire copyright in the United States in the same way as an American citizen:

Belgium }
France }
Great Britain } July 1, 1891.
Switzerland }
Germany April 15, 1892.
Italy October 31, 1892.
Denmark May 8, 1893.
Portugal July 20, 1893.
Spain July 10, 1895.
Mexico Feb. 27, 1896.
Chili May 25, 1896.