Chapter XVII: Appendix (10)

"(b) To pay to the copyright proprietor such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or in lieu of actual damages and profits such damages as to the court shall appear to be just, and in assessing such damages the court may, in its discretion, allow the amounts as hereinafter stated, but in the case of a newspaper reproduction of a copyrighted photograph such damages shall not exceed the sum of two hundred dollars nor be less than the sum of fifty dollars, and such damages shall in no other case exceed the sum of five thousand dollars nor be less than the sum of two hundred and fifty dollars, and shall not be regarded as a penalty:

"First. In the case of a painting, statue, or sculpture, ten dollars for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;

"Second. In the case of any work enumerated in section five of this Act, except a painting, statue, or sculpture, one dollar for every infringing copy made or sold by or found in the possession of the infringer or his agents or employees;

"Third. In the case of a lecture, sermon, or address, fifty dollars for every infringing delivery;

"Fourth. In the case of dramatic or dramatico-musical or a choral or orchestral composition, one hundred dollars for the first and fifty dollars for every subsequent infringing performance; in the case of other musical compositions, ten dollars for every infringing performance;

{Sidenote: Impounding}

"(c) To deliver up on oath, to be impounded during the pendency of the action, upon such terms and conditions as the court may prescribe, all articles alleged to infringe a copyright;

"(d) To deliver up on oath for destruction all the infringing copies or devices, as well as all plates, molds, matrices, or other means for making such infringing copies as the court may order;

{Sidenote: Supreme Court rules}

"Rules and regulations for practice and procedure under this section shall be prescribed by the Supreme Court of the United States," for which see appendix.

{Sidenote: Court jurisdiction}

The Circuit Court, or District or other courts having circuit jurisdiction, of the United States, have original jurisdiction "of all suits at law or in equity arising under the patent or copyright laws of the United States" with appeal or writ of error to the Supreme Court of the United States. Copyright cases are brought in the first instance before a single judge sitting in Circuit Court or District Court, and thence are appealed to the Circuit Court of Appeals consisting of three or more circuit judges, and thence again to the United States Supreme Court, the final authority. These federal courts have sole jurisdiction under the copyright law as such; but copyright cases are often adjudicated in State courts on questions arising under the law of contracts or other statute or common law, regard being always given to the decisions of the federal courts as to copyright questions proper which may be involved. In other words, the State courts do not pass upon copyright law, but may apply, within the respective states, the copyright decisions of federal courts. Thus in Hoyt _v._ Bates, in 1897, Judge Putnam in the U. S. Circuit Court in Massachusetts remanded the case back to the State courts because the question was not under the copyright law as such, but regarding the ownership of copyright property. In this case the author of a play "A black sheep," containing a song "Sweet Daisy Stokes," licensed the defendant to print the song. The defendant copyrighted the song and the plaintiff sued to compel him to assign his copyright. The case illustrates the respective jurisdictions of federal and State courts in copyright matters.

{Sidenote: Limitation}

The United States courts have authority to enter the decrees necessary to enforce the remedies provided by the law. Important provisions of the new code provide that civil action in copyright cases may be brought "in the district of which the defendant or his agent is an inhabitant or in which he may be found"--thus preventing avoidance by the defendant possible under earlier law; and also that any injunction granted in any one district may be operative throughout the United States--a provision adopted into the law from recent legislation intended to prevent the evasion of injunctions, particularly by "fly by night" dramatic companies passing from one state or court jurisdiction into another, but usefully applicable also throughout the whole range of copyright infringements. Criminal proceedings under the copyright act may not be brought after three years from the commission of the offense.

Under the former laws the District courts also had certain--or uncertain--jurisdiction. The distinction between the District courts and the Circuit courts of the United States, both of which are courts of first instance, has been so complicated and uncertain as to be practically impossible of statement--a situation which has led to a measure for the abolition of the distinction and the provision of a single court in each federal district having original jurisdiction in the first instance, from which appeal will go to the Circuit Court of Appeals and thence to the U. S. Supreme Court, or in certain cases direct to the Supreme Court.

{Sidenote: Text of procedure provisions}

The text of these provisions is as follows:

"(Sec. 26.) That any court given jurisdiction under section thirty-four of this Act may proceed in any action, suit, or proceeding instituted for violation of any provision hereof to enter a judgment or decree enforcing the remedies herein provided.

{Sidenote: Proceedings united in one action}

"(Sec. 27.) That the proceedings for an injunction, damages, and profits, and those for the seizure of infringing copies, plates, molds, matrices, and so forth, aforementioned, may be united in one action."

{Sidenote: Jurisdiction in copyright cases}

"(Sec. 34.) That all actions, suits, or proceedings arising under the copyright laws of the United States shall be originally cognizable by the circuit courts of the United States, the district court of any Territory, the supreme court of the District of Columbia, the district courts of Alaska, Hawaii, and Porto Rico, and the courts of first instance of the Philippine Islands.

"(Sec. 35.) That civil actions, suits, or proceedings arising under this Act may be instituted in the district of which the defendant or his agent is an inhabitant, or in which he may be found.

{Sidenote: Injunction provisions}

"(Sec. 36.) That any such court or judge thereof shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions to prevent and restrain the violation of any right secured by said laws, according to the course and principles of courts of equity, on such terms as said court or judge may deem reasonable. Any injunction that may be granted restraining and enjoining the doing of anything forbidden by this Act may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative throughout the United States and be enforceable by proceedings in contempt or otherwise by any other court or judge possessing jurisdiction of the defendants.

"(Sec. 37.) That the clerk of the court, or judge granting the injunction, shall, when required so to do by the court hearing the application to enforce said injunction, transmit without delay to said court a certified copy of all the papers in said cause that are on file in his office.

{Sidenote: Appeal}

"(Sec. 38.) That the orders, judgments, or decrees of any court mentioned in section thirty-four of this Act arising under the copyright laws of the United States may be reviewed on appeal or writ of error in the manner and to the extent now provided by law for the review of cases determined in said courts, respectively.

{Sidenote: No criminal proceedings after three years}

"(Sec. 39.) That no criminal proceeding shall be maintained under the provisions of this Act unless the same is commenced within three years after the cause of action arose."

{Sidenote: Strict compliance requisite}

The copyright statutes are construed strictly, by the letter of the law, in respect to procedure as well as to other features. This is especially the case in respect to forfeiture and penalties, as where, in Falk _v._ Heffron, in 1893, 2400 copies of a copyright portrait of Lillian Russell had been lithographed, twenty-one on a sheet. Judge Wheeler in the U. S. Circuit Court in New York held with the jury that only one dollar per sheet could be recovered as penalty, because the law specified "sheets." In McDonald _v._ Hearst, in 1899, in the U. S. Circuit Court in California, Judge DeHaven held that the proprietor of the San Francisco _Examiner_ could not be held liable for copyright penalties because an employer could not be held to penal responsibility for the act of his agent. In a suit to obtain damages based on forfeiture, in Wheeler _v._ Cobbey, in 1895, Judge Shiras in the U. S. Circuit Court in Nebraska sustained a demurrer on the ground that the damages asked for depended on forfeiture and could not be obtained unless the actual forfeiture was had within the statutory limit of two years. In Morrison _v_. Pettibone, in 1897, in the U. S. Circuit Court in Illinois, Judge Seaman held that certain sheets, seized during the process of lithographing, when only one color had been printed, were not exact copies and therefore could not be forfeited. In Bennett _v._ Boston _Traveler_ Co., in 1900, the Circuit Court of Appeals, through Judge Colt, refused relief because the plaintiff had alleged infringement of a cartoon published in the New York _Herald_, which was not specifically copyrighted, instead of alleging infringement of the copyrighted newspaper of which it was a part. An extreme case was that of Child _v._ N. Y. _Times_ Co., in 1901, where the plaintiff had purchased infringing copies from the defendant, in which case Judge Hazel in the U. S. Circuit Court in New York held that as these were not literally "found in possession" of defendant, a penalty could not be collected. Several of these cases illustrate escapes from justice which will not be possible under the code of 1909, which uses broader phraseology. In Walker _v._ Globe Newspaper Co., in 1908, where no copies of a pirated map were found in possession of the defendants, the U. S. Supreme Court held that outside of statutory remedies no suit for damages could be maintained.

{Sidenote: Damage not penalty}

On the other hand, in the case of Brady _v._ Daly, which came before the U. S. Supreme Court in 1899, the defendants, on a question of jurisdiction, raised the issue that the old law provided for a penalty and not for damages, in denying which Justice Peckham held that: "The statute in using the word 'damages' did not mean a forfeiture or penalty, as it is difficult to prove the exact amount which the proprietor of a play may suffer by reason of an infringement. It is probable that Congress intended to provide a remedy so that the proprietor could recover a certain amount of damages without proof of what his actual loss had been. In the face of the difficulty of determining the amount of damages, a minimum sum is provided in any case, with the possibility of recovering a larger amount on proof of greater damage. The idea of punishment is not so much suggested as the desire to provide for compensation to the proprietor." This rule was applied by Judge Lacombe in Patterson _v_. Ogilvie, in 1902.

{Sidenote: Other procedure decisions}

In the case of Falk _v._ Curtis Pub. Co., which came before the U. S. Circuit Court in Pennsylvania twice in 1900, some important decisions or indications as to copyright procedure were given. The defense that under the copyright act the words "any person" did not include a corporation was overruled by Judge Dallas on the ground that the general statute specifically construed the word "person" to extend to partnerships and corporations. In this case an action to recover penalties and an action to replevin copies in possession were started independently and simultaneously, and the Circuit Court of Appeals through Judge Buffington affirmed the decision that as the penalties under the old act were restricted to copies "found in possession," the suit for penalties was premature. In the later case of Rinehart _v._ Smith, also in the Pennsylvania circuit, it was pointed out that an action for replevin was not the proper form of suit because in such actions bonds might be given and the forfeiture of copies thus be barred; and in Hegeman _v._ Springer, the Circuit Court in New York held, in 1901, that a replevin suit, involving prior demand, was not necessary and that the copyright statute itself gave authority for an action for seizure without previous demand, as would be necessary in replevin proceedings. It was held, however, in the Illinois circuit in an earlier case, that a suit of replevin will lie to enforce forfeiture under the copyright act. Several of these perplexities, however, are removed by the code of 1909, which expressly (sec. 27) authorizes the bringing together of all the remedies in one action.

{Sidenote: Preventive action}

That there can be no infringement of copyright by acts committed before the copyright was obtained, was decided in 1900 in the U. S. Circuit Court in the case of Maloney _v._ Foote, where the two parties were jointly engaged in preparing directories, and the plaintiff obtained the copyright and brought suit for infringement for the prior use of material, the question being of contract and not of copyright. On the other hand, as far as practicable, "it is the policy of the law to arrest the pirate before he actually makes off with the plunder," said Judge Coxe in the U. S. Circuit Court of Appeals, in Gannet _v._ Rupert, in 1904.

{Sidenote: Party in suit}

In 1903, in Champney _v._ Haag, it was held in the U. S. Circuit Court in Pennsylvania, that though a copy of a photograph of a copyright painting was an infringement, it was not the owner of the original copyright but the owner of the photograph who must sue--but this is contrary to the English ruling case of Lucas _v._ Williams, and is probably not good law.

{Sidenote: Suit for injury to reputation}

A curious case arose in England in 1892 as to the rights of an author after publication and transfer of copyright, in Lee _v._ Gibbings, where the plaintiff had prepared for the defendant, a publisher, at an agreed price, an edition with introduction of Lord Herbert's autobiography, which the defendant reissued in a condensed edition without the introduction and other matter by the author, though retaining his name. The author sued to restrain the condensation as an injury to his reputation, but Justice Kekewich in the Chancery Division held that this should be a suit for libel and not under copyright, and declined to enjoin the defendant before the question whether this was actually a libel was settled.

{Sidenote: Damages in willful case}

In a case of evident bad faith in wholesale copying, the U. S. Circuit Court in Hartford Printing Co. _v._ Hartford Directory Co. awarded as damages the gross receipts less estimated cost.

{Sidenote: Penal provisions}

The provisions for collecting damages and profits are supplemented in case of infringement, willfully and for profit, by penal provisions which make the offense a misdemeanor punishable by imprisonment not exceeding one year or fine not less than $100 or more than $1000, or both, in the discretion of the court, according to the following provision (sec. 28):

{Sidenote: Penalty for willful infringement}

"That any person who willfully and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by imprisonment for not exceeding one year or by a fine of not less than one hundred dollars nor more than one thousand dollars, or both, in the discretion of the court."

This provision (sec. 28) includes however a proviso exempting from prevention or punishment the performance of certain musical works for charitable or educational purposes and not for profit, which proviso is given in full in the chapter on dramatic and musical copyright.

{Sidenote: Penalty for false notice of copyright}

Provision is also made in the new statute for the punishment by fine, but not by imprisonment, of any person who with fraudulent intent affixes a copyright notice or its equivalent on an uncopyrighted work, or removes or alters the copyright notice in a copyrighted work, the fine being not less than $100 nor more than $1000; and of any person who shall knowingly issue, sell or import any article bearing notice of United States copyright which has not been copyrighted in this country, the fine in this case being $100, according to these provisions:

"(Sec. 29.) That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars."

Further provisions as to importation are given in the chapter on that subject.

{Sidenote: Allowance of costs}

In addition to injunction, damages and profits, delivery of copies, etc., the courts may allow costs inclusive of attorney's fees as provided:

"(Sec. 40.) That in all actions, suits, or proceedings under this Act, except when brought by or against the United States or any officer thereof, full costs shall be allowed, and the court may award to the prevailing party a reasonable attorney's fee as part of the costs."

It seems impracticable and undesirable to attempt in this chapter a statement of the procedure under former copyright laws in this country, or under the legal methods in vogue in other countries, for which the legal authorities on local procedure and practice should be consulted.

{Sidenote: The new British code}

The new British measure provides the usual civil remedies of injunction, damages, account and costs in the discretion of the court. The author, or if no author the publisher whose name is indicated on the work, is _prima facie_ recognized as owner unless the contrary is proved. Infringing copies or plates become the property of the copyright owner. If the infringer proves ignorance, only an injunction will hold. In architectural works, after construction has been commenced, damages and not an injunction are provided for. Actions must be commenced within three years. Summary conviction is provided for in the case of any person knowingly and for profit or trade making, offering, distributing, exhibiting or importing infringing copies or making or having in possession infringing plates with penalty of a fine not exceeding fifty pounds, or in case of a second offense, imprisonment not exceeding two months, as also destruction or delivery up to owner of the copyright. The summary provisions of the musical copyright acts of 1902 and 1906 remain unrepealed.

Under previous law there had been two notable cases of criminal punishment for conspiracy. In 1906, _Re_ Willets against a combination among cheap music publishers, where the Common Serjeant sentenced the vendors to nine months' imprisonment, and in 1910, _Re_ Bokenham, where pirates who had conspired to print surreptitiously obtained copies of Oscar Wilde's poem "De Profundis," were also sentenced to six months and lesser periods.

XVI

IMPORTATION OF COPYRIGHTED WORKS

{Sidenote: 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.

{Sidenote: 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 homoeopathic principle of off-setting one restriction upon authors' rights by another restriction upon authors' rights.

{Sidenote: General prohibitions}

{Sidenote: 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.

{Sidenote: 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:

{Sidenote: 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.

{Sidenote: 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;

{Sidenote: 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.

{Sidenote: Seizure}

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: 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."

{Sidenote: 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."

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: Periodicals may be imported}

{Sidenote: 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 cyclopaedia contained copyrighted contributions by American authors, such cyclopaedia would be denied admission unless such contributions might be adjudged a negligible proportion of the work.

{Sidenote: 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."

{Sidenote: 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."

{Sidenote: 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."

{Sidenote: 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."

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: 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.

{Sidenote: Canadian practice}

Canada had, in an act of 1850, availed itself of the foreign reprints act by imposing a duty "not exceeding 20 per cent" on foreign reprints of English works, and under this act the Dominion later became "flooded" with cheap American reprints, while the royalty to British authors, fixed at 12-1/2 percent, was so inadequately collected that only L1084 was paid in the ten years ending 1876. Canada accordingly passed its copyright act of 1875, providing for the reprinting of English copyright works in Canada under Canadian copyright and prohibiting importation of such works except in the original edition from the United Kingdom, and this act, although opposed as an invasion of the exclusive control of their works by British authors, was accepted by the British Parliament in the Canada copyright act of the same year, with the proviso that Canadian reprints should be prohibited importation into the United Kingdom except with assent of the copyright proprietor. It has since provided in the Fisher act of 1900 for the prohibition of importation of an original edition of an English work licensed for reprint in Canada, except two copies for libraries and one copy through demand on the Canadian licensee by an individual for use and not for sale--a provision considered _ultra vires_ by English authorities.

{Sidenote: Australian provision}

The Australian code of 1905 prohibits the importation of all pirated books or artistic works in which copyright is subsisting in Australia, "whether under this act or otherwise," and provides for the forfeiture of such works, on condition of written notice by the owner of the copyright to the Minister, directly or through the Commissioners of Customs of the United Kingdom, of the existence of the copyright and of its term. These provisions do not seem to make clear whether original editions of English works, of which an Australian edition is copyrighted, are held to be contraband.

{Sidenote: Foreign practice}

The legislation of France and Germany and other countries seems to provide against importation inferentially rather than specifically, Russia and Peru being exceptional in their specific prohibitions. But the treaties and conventions between the several countries are for the most part specific on this point, as are those of France providing that "when the author of a work of which the property rights are guaranteed by the present treaty shall have assigned his right of publication or of reproduction to a publisher in the territory of either of the high contracting parties with the reservation that the copies or editions of this work thus published or reproduced cannot be sold in the other country, these copies or editions shall be considered and treated, respectively, in that country as illicit reproductions"; and the treaties of Germany are especially specific with respect to musical compositions.

The authorities as to the prohibition of importation in other countries are fully given in a statement from the Librarian of Congress made part of the printed record of the third hearing before the Patents Committees at Washington, March 26-28, 1908, which includes the text of the opinion in Pitt Pitts _v_. George as the leading English case.

{Sidenote: International practice}