Chapter XXIV: Part V: deals with infringement, Part VI with international and state (2)

In 1894-95, and again in 1897-1901, interstate treaties, incidentally covering copyright, were negotiated; but interstate and international relations are now covered by the participation of the five nations, as well as the United States and the Dominican Republic, in the Mexico convention of 1902 and by the treaty of peace made by these five Central American states at Washington, December 20, 1907. There is some question under the treaty of 1907 whether protection is assured in each state to others than residents, but probably all citizens of the five states are protected throughout all. To secure protection under the convention of 1902, an American citizen should apply for an additional certificate from the U. S. Copyright Office for each country, which after validation by the State Department is sent with one deposit copy for each country to the respective American legations, through which official acknowledgment will be returned. Costa Rica has had reciprocal relations with the United States as a "proclaimed" country since October 19, 1899, and has treaties with France (1896) and Spain (1893); Guatemala with France (1895) and Spain (1893), the latter on the "most favored nation" basis; Nicaragua with Italy (1906); and Salvador with France (1880) and Spain (1884).

{Sidenote: Panama}

Panama grants copyright under the constitution of 1904, which adopted and made part of Panamanian law the Colombian copyright law of 1886, which is summarized in the paragraph on Colombia. The Canal Zone is under United States law through a War Department order of 1907.

{Sidenote: Cuba}

Cuba, which as a Spanish colony came under the Spanish act of 1879, has domestic protection under this act as applied by four military ordinances, 1900-1902, during the United States protectorate, and continued under its insular government. In the third ordinance, of June 13, 1901, it was provided that existing copyrights under the Spanish law of 1879 should be valid during their term, and also that copyright as well as patents granted by the United States shall have insular protection on deposit of a copy of the certificate. Registration is made at the Registry in the Department of State within one year of publication, accompanied, if a foreign work, by certificate of copyright in the country of origin, and deposit should be made of three copies for preservation in the National Library, the University and the Public Archives. On these conditions, under the military ordinance of 1900, authors of foreign scientific, artistic and literary works or their agents or representatives enjoy protection in the case of new works. Regulations of 1909 prescribe the forms of application for domestic and for foreign works. To claim Cuban copyright, an American should obtain an attested copy of the copyright certificate and transmit this, with a power of attorney in Spanish validated by a Cuban consul, and three deposit copies, to a representative in Havana, who must deposit the certificate with an attested Spanish translation and the three copies at the Registry. Copyrights by Spanish subjects previous to the treaty of peace with the United States, ratified in 1899, remain valid by virtue of a specific article in the treaty. Cuba has been in reciprocal relations with the United States as a "proclaimed" country since November 17, 1903, and has a treaty with Italy (1903) on the "most favored nation" basis. It is reputed to have ratified the Pan American convention of 1902, but possibly only the industrial treaty.

{Sidenote: Haiti}

Haiti, which gave copyright protection as early as 1835, adopted in 1885 a copyright law with some unusual features. An author holds exclusive right during life; the widow through her life; the children for twenty years further, or other heirs, if there are no children surviving, for ten years. Unauthorized reprints are confiscated on the complaint of the proprietor of the copyright; and the author recovers from the reprinter the price of a thousand, or from a bookseller of two hundred copies, reckoned at the retail price of the author's edition. Deposit is required of five copies within twelve months from publication at the Department of the Interior. Haiti has the unique distinction in Latin America of being a unionist country; it was originally a party to the Berne convention, accepted the Paris acts and adopted the Berlin convention without reservation. It has no relations with the United States and no treaties.

{Sidenote: Dominican Republic}

The Dominican Republic provides copyright protection under its constitution of 1896, has a treaty with Mexico (1890) on the "most favored nation" basis, and ratified the Pan American convention (though possibly only the industrial treaty) of 1902, June 15, 1907.

{Sidenote: West Indian Colonies}

Jamaica and the other British islands and colonies along the Atlantic and Caribbean seas have copyright protection under imperial and to some extent local laws, as already noted; Porto Rico is under the provisions of United States law and the Danish and Dutch West Indian colonies are under the respective laws of their nations.

{Sidenote: Brazil}

Brazil, under the constitution of 1891 and the law of 1898 and regulations of 1901, grants copyright for the general term, inclusive of photographs, of fifty years from the first of January of the year of publication, with a term of ten years for the right of translation and playright. Posthumous works are protected within fifty years from the death of the author. Assignments are valid only for thirty years, after which copyright reverts to the author. Written application for registration is requisite at the National Library, and deposit of one copy of a printed book or play must be made there within two years. Reservation of royalty for playright must be made on a printed work. Protection is confined to a native or resident or a Portuguese author of a work written in Portuguese--the latter in accordance with a treaty of reciprocity with Portugal (1889), the only treaty.

{Sidenote: Argentina}

Argentina, which under its constitution of 1853 and civil code of 1869 protected an author's productions as general property, adopted in September, 1910, a copyright law, as an application of common law, providing for a term of life and ten years, or in the case of posthumous works twenty years from publication. Protection is comprehensive of all classes of intellectual property, and extends to all forms of use without special reservation. By Presidential decree of February 4, 1911, a Section of Library deposit was established as a division of the National Library. Registration is required by deposit of two printed copies or of an identifying reproduction within fifteen days from publication for works published in the capital, or thirty days in the provinces, this including foreign works published within the country, publication meaning the offering for sale therein. The law specifically applies to authors of other countries with which Argentina has international relations, deposit in Buenos Aires being then not required where the formalities of the country of origin have been fulfilled. Argentina's international relations are dependent chiefly on the Montevideo convention of 1889, as ratified by Argentina with respect to Paraguay, Peru and Uruguay in 1894, Bolivia in 1903, and with respect to Belgium in 1903, France in 1896, Italy and Spain in 1900.

{Sidenote: Paraguay and Uruguay}

Paraguay and Uruguay, like Argentina, long protected intellectual property as general property. Paraguay's constitution of 1870 secures exclusive property to an author, and a new penal code, promulgated in 1910, assures copyright on all classes of intellectual property, on registration in the public registries with prescribed fees, and punishes piracy by fine of double the profit and imprisonment. Uruguay in its civil code of 1868 declared that the productions of talent or intellect are the property of their authors, to be regulated by special law, but no such law has been passed. Both countries have relations with the other South American states parties to the Montevideo convention of 1889; Paraguay has also the same relations as Argentina with the European countries above cited. The statement that Paraguay is a party to the Mexico City convention of 1902 seems a misapprehension arising from the fact that her representative signed _ad referendum_.

{Sidenote: Chile}

Chile, under the constitution of 1833 and law of 1834 and its civil code of 1855 and penal code of 1874, protects copyright including playright for a general term of life and five years thereafter, which may be extended an additional five years, except for playright, by action of the government, corporate works for forty and posthumous works for ten years. Deposit of three copies is required at the National Library in Santiago. Protection is extended to foreign works [first?] published in Chile; a Chilean-made edition of a work already published abroad may have protection for ten years. Chile has reciprocal relations with the United States as a "proclaimed" country since May 25, 1896; by a provision in the treaty respecting parcels post, piratical copies of works copyright in the country of destination are to be excluded. Chile ratified only the ineffective Rio convention of 1906.

{Sidenote: Peru}

Peru, under its law of 1849 and the constitution of 1860 and penal code, grants copyright including playright for life and twenty years thereafter. Anonymous and pseudonymous works may be protected for the full term by deposit of the true name in a sealed envelope. Posthumous works are protected for thirty years. Deposit is required of one copy in the public library and one copy in the department Prefecture. Protection is probably confined to an inhabitant of Peru, but Peru has reciprocal relations under the Montevideo convention as ratified October 25, 1889, with Argentina, Bolivia, Paraguay and Uruguay.

{Sidenote: Bolivia}

Bolivia, which protected intellectual property by its penal code of 1834, and later by a copyright law of 1879, adopted a brief copyright code, including playright, in 1909, providing a general term of life and thirty years, with the peculiar provision that the publisher of a work of unrecognized authorship hitherto unpublished may have protection for twenty years. Registration is required at the Ministry of Public Education and deposit of one copy of printed works must be made within one year of publication in the public libraries, in default of which the work falls into the public domain. Bolivia has reciprocal relations under the Montevideo convention as ratified November 5, 1903, with Argentina, Paraguay, Peru and Uruguay, and also international arrangements with France (1887).

{Sidenote: Ecuador}

Ecuador, under the constitution of 1884 and law of 1887, grants copyright for life and fifty years, and playright for life and twenty-five years. Anonymous and pseudonymous works are protected fifty years beyond the death of the publisher, unless the author meantime substitutes his name; posthumous works for twenty-five years. There are special provisions for terms of fifty years in the case of translations, adaptations, compilations, etc., and for twenty-five years for editions of works of undefined authorship. Registration is required with notice of reservation of playright within six months from publication or three months from performance of an unpublished play. Three copies of a printed work must be deposited with the registrar for the use of the Minister of Public Education, the National Library and the provincial library. Titles of periodicals are specified as copyrightable. Assignment must be registered to become operative. Protection is seemingly confined to a citizen of Ecuador, but it is expressly provided that a foreign author may assign right of translation or playright to a citizen of Ecuador, who may then prevent infringement. Ecuador has reciprocal relations with Mexico (1888), as also with France (1898, 1905) and Spain (1900), all on the "most favored nation" basis.

{Sidenote: Colombia}

Colombia, under the Constitution and law of 1886, and the civil code of 1873 and penal code of 1890, protects copyright, including playright, for life and eighty years, and for the legal existence of a corporate body, with the provision as in Spain respecting natural heirs. Registration is required within a year from publication or performance, at the Ministry of Public Education, with deposit of three copies, one for the Ministry and two for the National Library. If a work is not registered within the year, it falls into the public domain for ten years, but can thereafter be protected by registration within the succeeding year. Non-Colombian authors seem not to enjoy protection of the right of translation for a work printed in a country of foreign language. Colombia has treaties with Spain (1885) on the "most favored nation" basis, Italy (1892) and Switzerland (1908).

{Sidenote: Venezuela}

Venezuela, under the law of 1894 and penal code of 1897, protects copyright including playright in perpetuity, the publisher being considered the author in the case of anonymous and pseudonymous works pending legal proof of the identity of the author. In posthumous works protection is in perpetuity to the heirs or assigns. The right is secured by request to the district governor or state president for the issue of a patent with registry of title and verbal oath that the work has not been previously published within Venezuela or elsewhere; the patent certificate must be printed on the back of the title-page, and must be published at least four times in the official gazette. Deposit must be made of six copies at the Registry, two copies going to the Minister of Agriculture for the National Library. Protection is not specifically confined to Venezuelans, and seems to depend on first publication, but assignment to a citizen of Venezuela may be desirable. Venezuela has no foreign relations.

XXII

BUSINESS RELATIONS OF COPYRIGHT: AUTHOR AND PUBLISHER

{Sidenote: Copyrights in their business relations}

Business relations, founded on copyright, are chiefly those between author and publisher. These relations involve questions, not so much of copyright law in itself, as of the law of contract and other statutory and common law provisions. There has been more or less desire on the part of authors to include business relations within copyright statutes, and in fact the recommendations of the American (Authors) Copyright League to the initial copyright conference of 1905 covered several points of business law, as for instance the right of an author to recover possession of his work from the publisher in case the publisher failed to keep it in print, or the right to prevent assignment of publication rights to a publisher unsatisfactory to the author. It was, however, determined, both in the conferences and by the Congressional Committees, to omit as far as practicable from the copyright law all questions of business relationship, and to leave these to specific contracts between author and publisher or to the general provisions of law. The law, whether as to copyright or other matters, should afford a basis of certainty for business, but it cannot wisely interfere with freedom of contract between the parties to a business transaction.

{Sidenote: The German publishing law of 1901}

{Sidenote: Editions}

{Sidenote: Alterations}

American and English statutes accordingly make no special regulation of the calling of publisher. Provision is, however, made in some continental countries for the regulation of publishing and publishers, as in Germany, where a law of June 19, 1901, passed coincidently with the general copyright code, covers this field in remarkable detail. It provides that the author, during the continuance of the publishing contract within the copyright period, may not reproduce or distribute the work otherwise than through the publisher, except in translation, dramatization (or if a play, novelization) or elaboration of a musical work which is not merely a transposition or arrangement. The author is privileged to include his work in a collected edition twenty years after publication, or an article from a collective work after one year; and the publisher may not republish in such form under the contract. Unless otherwise specified, the publisher is entitled to print only one edition, if undefined one thousand copies, in addition to extra copies for replacing damaged copies and not more than five per cent free copies; destroyed copies may be replaced on notice to author. Opportunity for revision must be afforded to the author in new editions. Alterations are permitted to the author before reproduction and at his expense during the progress of the work, but he cannot be charged for alterations necessitated by new circumstances. The publisher may not make alterations or abbreviation of text or title, except those to which the author cannot fairly refuse consent.

{Sidenote: Issuance of work}

The publisher must issue the work in suitable form in accordance with the customs of the trade and the character of the book, and immediately after receipt of the complete work or completed separate part. The publisher must take measures to keep the book in stock. He is not bound to produce a new edition, but if on request from the author he fails to do so, the publishing right reverts to the author. The publisher may cancel the contract, if the purpose of a work no longer exists, on payment of remuneration to the author. Proof for correction must be furnished to the author.

{Sidenote: Price and remuneration}

The publisher may fix and reasonably reduce the price, but can raise it only with consent of the author. If remuneration is not specified, an equitable payment is required, and the remuneration is due on the delivery or on the appearance of the work, or if determined by sale, then yearly, with opportunity to the author to verify the account from the publisher's books. The author is entitled to free copies to the extent of one per cent of the edition, but not less than five nor more than fifteen, and to additional copies at the lowest trade price. The author is entitled to return of his manuscript after reproduction, if stipulated at the beginning.

{Sidenote: Assignment}

The publisher may assign, in the absence of agreement, but not for separate works; though for this last, consent cannot unreasonably be withheld and may be presumed if the author does not reply within two months to a demand; and the assignee becomes, jointly with the original publisher, liable to the author for future performance of the contract. When a contract is completed by the issue of specified editions or copies, the publisher is bound to notify the author, and if the contract is for a definite time, the publisher is not entitled to distribute remaining copies after that time. In case of delay in the contracted delivery of the work, the publisher, after a reasonable extension of time, may decline the work, unless delay involves only insignificant loss; and in case the work is not of stipulated quality, the publisher may also cancel the contract or require damages for non-fulfillment. The author has analogous rights as against the publisher.

{Sidenote: Accidental destruction}

{Sidenote: Delivery}

If the work is accidentally destroyed after delivery to the publisher, the author is entitled to remuneration, but the contract terminates; but the author must, if practicable, rewrite it for additional remuneration or may reproduce it gratuitously and require publication. Like rights may be enforced by either party in case of destruction for which the other is responsible. Delivery is implied when the publisher is placed in position to accept the work. If the author dies after delivery of part of his work, the publisher may maintain his rights in the part delivered on specified notice to heirs; and if the author is absolutely prevented from completing his work, the publisher has like right to the portion already prepared. The author may withdraw from his contract before reproduction of his work or a new edition is begun, if justified by unforeseen circumstances, on remuneration of publisher's expenses; but if he publishes elsewhere within a year, he must also pay damages for non-fulfillment of contract to the original publisher, unless the latter has declined to resume the contract.

{Sidenote: Bankruptcy of publisher}

{Sidenote: Non-copyright work}

The relations of a publisher in case of bankruptcy are specifically treated, and the regulations of the civil code and general legal principles are specifically applied to cancellation of publishing contracts. On a non-copyright work, an author must not conceal from the publisher that he cannot transfer exclusive right of publication; but the author must act toward the publisher as though the work were copyrighted, at least until six months after publication.

{Sidenote: Articles in periodicals}

The law is made applicable to articles in periodicals or portions of collective works. An article in a newspaper is at the disposal of the author immediately after publication; an article in other periodicals after one year, unless exclusive continuing right has been sold to the publisher. A publisher is free to make usual alterations in an unsigned article. The author of an article may cancel his contract and obtain remuneration in case it is not published within a year after delivery, but damages can be claimed only in case a time of publication has been named by the publisher. The author of a newspaper article has no claim to free copies or special terms. In the case of a work planned by the publisher, or a collaborative, supplementary or collective work commissioned by the publisher, the publisher is not bound to reproduce and distribute the work. The law is made applicable in case the contract with the publisher is made by another than the author. Appeal is authorized to the Supreme Court of the Empire.

It is impracticable to cite all the details of this extraordinarily detailed law, but the provisions summarized afford a remarkable conspectus of German practice on business questions possibly arising between author and publisher, useful in relation to American and English practice.

{Sidenote: The publisher as merchant}

{Sidenote: "Outright" transfer}

The publisher is the merchant for the author, and the remuneration which he can pay to the author is limited by the price and sale which he can obtain from the book-buying public. The relation between author and publisher should be, as previously emphasized, most fully, clearly and specifically set forth in the initial contract. "Agreements between author and publishers," said Vice Chancellor Page Wood in 1857 in Reade _v._ Bentley, "assume a variety of forms. Some are so clear and explicit that no doubt can arise upon them. Thus, where an author assigns his copyright, the transaction is one which every person understands, and which leaves no room for uncertainty as to the rights of the parties." The work may indeed be transferred "outright" without written contract, by the delivery of the manuscript and payment of a bargained sum, in which case the publisher becomes the proprietor and may take out the copyright in his own name or that of the author, can assign the work and treat it entirely as though his own, except that he cannot alter it to the detriment of the author's reputation. But even in "outright" sale, a specific contract is desirable and is indeed necessary if the author is to agree with the publisher to apply for renewal and include the added period in the term.

{Sidenote: "Joint adventure"}

More usually, the contract between author and publisher is on the basis of a specified royalty--usual in America, or "half profits,"--more common in England, in which case the relation is not that of partnership but of a "joint adventure" terminable on notice unless it is made for a stated time, or for one or more editions, of a specified number of copies, or under other limiting conditions. In such case the expenses of publication may be borne by the publisher, or the author may pay for the plates or for the edition, and receive correspondingly larger return. Unless there is actual or constructive partnership, the publisher, and not the author, is liable for paper, printing, and like accounts. Or the publisher may be simply the agent of the author in manufacturing his book and selling for a stated commission. A contract of publication usually implies exclusive right, but an author may contract with several publishers under a license agreement; and on the compulsory license system, often miscalled the "royalty plan," he must permit any publisher, who will pay him the license royalty, to issue the work.

{Sidenote: Risk and profit}

It is by means of the profit on successful books that the publisher is able to take risks with new books and new authors. It has been said that of five books, three fail, one covers its cost, the fifth must pay a profit to cover the rest. The element of risk in the book business is, in fact, very large; if the author complains that his successful book ought not to pay for others' unsuccessful books, he can get over the difficulty by taking the risk himself.

{Sidenote: Long price and "net" price}

{Sidenote: Equities}

The publisher usually sells to the public through the retail trade at a stated retail price, which may be either long price, in which case the high price and large trade discount permit a discount to the public, or "net" price, a lower price with less discount, which the bookseller is expected to maintain. The practice of issuing books at "net" price is growing, in the belief that through this policy larger sales are made and the publisher's gains and the author's royalties fairly balance. On the average, the publisher probably gets less per volume than the author, and the system is essentially on an equitable basis. The publisher's larger returns come from the fact that he handles more books than any one author writes. The publisher has usually, in bargaining with the author, the advantage of larger experience and superior business ability, and of the fact that the author seeks him rather than he the author; but no law can better the author in these respects. As a matter of practice, the better publishing houses treat with new authors on the same basis as with old, through a standard form of contract.

{Sidenote: The literary agent}

The author sometimes employs the "literary agent" as an intermediary in finding a publisher, especially for a first book, and in making arrangements with the publisher, for which the agent expects a stated payment or a proportion of the author's returns. The advantages of such intermediaries are offset by many disadvantages, and the best publishing houses treat an author as liberally and fairly in direct as through intermediate relations. In any event, the contract should be made and signed directly between author and publisher, as a third-party contract, or a double contract between author and agent and agent and publisher, presents serious complication in the event of future differences. The agent should not be given any lien on future works by the author. The literary agent cannot accept conditions or make sale beyond the authority given him by the author, and an innocent publisher may be held responsible for acts beyond that authority, as in the English case of Heinemann _v._ Smart Set Pub. Co., in 1909, where the defendants had bought "serial rights" with leave to condense into one number, which the agent had no authority to grant.

{Sidenote: Usual American contract}

In the publishing contract usual in America, the author "grants and assigns" to the publishers the stated work, undertaking either to copyright it himself or authorizing the publishers to enter copyright in their name, or as his attorneys in his name. The contract usually includes all translations, abridgments, selections, dramatizations, etc., or specifically reserves those to the author, the publishers in the first case agreeing to share profits or otherwise remunerate the author on such special forms. The author is expected to guarantee that he is sole owner of the work and has full power to make the grant, that the work is not a violation of any other copyright and that it is free from scandalous or libelous matter.

{Sidenote: Publishers' obligations}

The publishers undertake to publish the work in such style as they deem best suited to its sale, at their own expense, unless the author contracts to pay for the plates or for other publishing costs, and usually agree to account for sales semi-yearly or yearly and to make payments within four months thereafter. The royalty is usually based on the trade-list (retail) price, on the cloth or ordinary binding, or the style of binding in which the largest number of copies shall have been sold. It is frequently stipulated that on paper-bound copies, or editions or copies for schools or subscription sale, or a foreign market, or otherwise sold at a reduced price, the royalty shall be reduced, and that on press and other free copies no royalty shall be paid. When an author pays the cost of the edition or pays for making the plates, he may contract to pay a commission to the publisher and obtain the balance for himself, or he may contract for a larger percentage of return to him than the usual royalty percentage. The publishers are usually authorized to permit the printing of selections and to arrange for translations, etc., subject to the arrangement indicated above. The author is expected to pay for alterations either in full or above a stated sum, as fifty dollars, and to provide any index or like equipment if required.

{Sidenote: Reversion of contract}

Insurance is not usually required from the publishers, but in case of fire or loss, the publishers have the option of reproducing the work, and if they decline to do so, the contract usually provides for reconveyance of the copyright to the author and the termination of the agreement after the sale of copies remaining on hand. A publishing contract sometimes provides that after a specified time from date of publication, as two or five years, if the publishers consider that the public demand does not justify continuing publication, or for other reasons, they may offer to surrender their publishing rights on compensation for the plates, as at half cost, and remaining copies, as at cost, and if the author does not elect to accept this offer, then the publishers may sell copies on hand free from royalty and terminate the agreement, the copyright reverting to the author. The publishers are usually authorized, in their discretion, to protect the copyright by legal proceedings at their expense or at joint expense of publishers and author.

{Sidenote: Scope of contract}

The contract may be for the full term of copyright, with or without obligation on the part of the author to provide for renewal, or for a stated number of years and thereafter until terminated on stated notice, or it may be for a specified number of editions or copies. It is often stipulated that on discontinuance, the author shall have the right to take over the plates at cost or half cost and remaining copies at cost, in default of which the publishers may sell copies free of royalty,--but not continue to use the plates. If the book contains illustrations not made originally for the work, the contract may provide that electrotypes of them shall be transferred to the author for use solely in connection with the work in case of reversion of the copyright to him. The contract is usually drawn subject to assignment by either party, but only as a whole; but the author may require that the work shall not be transferred, to another publisher or otherwise, without his consent.

{Sidenote: Other works of author}

The contract may also reserve to the author a right to discontinue the agreement in case the publishers elect not to publish other works, which he may offer to them, or it may bind the author to offer subsequent works to the same publishers. This keeps in view the ultimate publication of a uniform collected edition of the author's works, which may also be covered by a provision giving the author right to include his work in a collected edition after a stated time.

{Sidenote: Standard contract}

The above summary gives the pith of a standard form of contract which has been adopted, in more or less detail, by many American publishers, and is usually kept in printed form by them. Owing to the careful specifications in the American type of contract, there are fewer cases in the American than in the English court records referring to the relation between authors and publishers; and the English "half profits" custom naturally leaves many more open questions of law and equity.

{Sidenote: Serial rights}

Where there are serial rights to be considered, as in the case of a novel, the agreement between author and publisher should be very clear. If an author contracts for a serial with periodical publishers who are also book publishers, that contract should state whether rights for book publication are involved or whether the author is left free to arrange for book publication independently. Conversely, where an author contracts for book publication, the contract should be explicit as to whether the author or the publishers shall exercise or arrange for serial publication, either before or after book publication.

{Sidenote: Republication of periodical articles}

Where an author furnishes an article or series of articles for a periodical, it should be made clear, by letter or contract, whether the periodical publisher also obtains the right to republish such articles in other shape or whether such right reverts to the author, and if so, how soon after publication of the periodical.

{Sidenote: Foreign markets}

In these days of increasing international relations, it is important that the author should have a clear understanding as to whether he retains the rights in other markets, whether in English speaking or foreign countries; or conveys them to the publishers as within the agreement, but to be separately accounted for; or assigns them as an integral part of the transaction. As between America and England, many publishing firms have branch houses or representatives in the other country or are in special relations with an independent firm therein. If the English market is conveyed, there should be a clear-cut understanding as to whether this includes the Canadian, Australian and South African rights. It is usual that a lower royalty is paid to the author on sheets sold for another than the home market.

{Sidenote: Contract to do work}

The contract of an author with a publisher that he _will_ write a specified book or work, is not usually enforceable by the courts through specific performance, for the simple reason that a court has no means of compelling an author to use his brain for a certain purpose, and the remedy against the author in this event is rather a suit for loss by failure to perform the contract, which loss is difficult to prove. If any remedy is to be provided, it should be stated in the contract as a specified penalty to be paid by the author,--a provision seldom included in publishing contracts. That an author may be held liable for a breach of contract if he declined without good cause to complete a work already partly delivered, was indicated in the early English case of Gale _v._ Leckie in 1817. An agreement to write a book may stand as an equitable assignment on the completion of the book, as was held in Ward, Lock & Co. _v._ Long, in 1906 in the Chancery Division by Justice Kekewich.

{Sidenote: Contract not to write}

An author who has contracted not to write on a stated subject or for other publishers, may be enjoined from such act. This was decided by early English precedents, as when in the case of Morris _v._ Colman, in 1812, Lord Chancellor Eldon held that Colman, in virtue of his contract to write plays for the Haymarket Theatre and for no other, could be restrained from furnishing plays to another theatre, though he could not be compelled to write plays; the same judge, in Clarke _v._ Price, held in 1819 that he could neither compel Price to continue to furnish Exchequer reports to the plaintiff publisher nor restrain him from furnishing such reports to another publisher, because the contract contained no specific provision to the latter effect. It is probable that the undertaking of an author not to prejudice the sale of his book by writing another of like subject, though under a different title, may be enforced even against a succeeding publisher who had no knowledge of that undertaking, as was indicated in Barfield _v._ Nicholson in 1824. Thus publishers were granted equitable relief against an author who had sold to other publishers modifications of an arithmetical series of which the copyright had been sold to the plaintiffs, in Wooster _v._ Crane in the U. S. Circuit Court of Appeals, in 1906. In Brooke _v._ Chitty, however, in 1831, Lord Brougham declined to restrain Chitty from writing a certain book, on the ground that the court could not act until there was actual printing and publication. The publisher, _vice versa_, cannot be restrained from publishing a rival work, even though it competes directly with a work already published or contracted for, unless that is distinctly forbidden in the contract with the first author.

{Sidenote: Implied obligations}

If a publisher prints without special agreement a manuscript submitted for approval, the courts will enforce reasonable payment; and in 1893, in Macdonald _v._ National Review, in an English county court, it was held that printer's proof sent by the publisher to the author, implied acceptance for publication. That the publisher may be held responsible for loss of a manuscript by the negligence of his employees, was held in Stone _v._ Long, in the King's Bench Division, by Master Chitty in 1903. An implied obligation to publish an accepted work was recognized in the Canadian case of Le Sueur v. Morang, where the Canadian Supreme Court affirmed in 1911 the decision that if a publisher withholds from publication a work of which he had bought the copyright "outright," the author might claim the work on return of the purchase money.

{Sidenote: Contract personal and mutual}

The contract between author and publisher is of a personal nature and therefore not assignable, in the absence of specific provision, except with consent of the other party. As it is with a particular author that a publisher contracts for a book, so an author contracts with a publisher of his choice and cannot be required to accept another. This is especially true where, on a profit-sharing or royalty arrangement, the author relies on the skill of the publisher for his market. Where E. V. Lucas had arranged with Grant Richards to publish a work on half profit, it was held in the Chancery Division in 1905 by Justice Warrington in a suit against the publishers' trustee in bankruptcy, that the contract was terminated by bankruptcy and that Mr. Lucas on fair purchase of the remaining copies, might contract with another publisher. There is more question when the contract is for a specified sum; and where the copyright is assigned by outright purchase the rule would not hold good, for the publisher then becomes the copyright proprietor. But even when a publisher has bought a copyright "outright," he may not do the author the wrong of printing the work in such altered shape as to injure the author's reputation, as was held in 1832 in the English case of Archbold _v._ Sweet, where a third edition of Archbold's legal work printed "with very considerable additions," which the plaintiff showed to contain gross blunders, was enjoined. But when work is done, to be published under the name of another, the actual writer may not prevent alteration by the employer, as was decided in Cox _v._ Cox in 1853, by the Vice Chancellor. Such a personal contract cannot be transferred as a bankruptcy asset, and on the bankruptcy of the publisher the rights revert to the author, except that stock on hand may perhaps be sold to another, who may not, however, distribute it to the disadvantage of the author. The personal contract involves personal guarantee by each party to the other of good faith and cooperative support, and neither party may act to the disadvantage of the other. The author, during the continuance of a publishing contract, must not permit the use of his work otherwise, to the prejudice of the original publisher, and the publisher must not sell copies to the injury of the future market of the author.

{Sidenote: English development of this doctrine}

This general doctrine was worked out in a chain of early English cases, the first of which was that of Sweet _v._ Cater, in 1841, where Vice Chancellor Shadwell decided that the plaintiff publisher who had contracted with Sir Edward Sugden to publish a tenth edition of 2500 copies of his legal work, could, until the specified copies were sold, prevent the publishing of another edition by the defendant publisher, despite any arrangements between the author and the latter. It was strongly upheld by Vice Chancellor Page Wood in the case of Stevens _v._ Benning, in 1854, affirmed on appeal by the Lords Justices, and Reade _v._ Bentley, in 1857. In the first case Forsyth contracted for the publication of his legal work, undertaking to make future revision for subsequent editions, with the publishing firm of the elder Benning, and on its bankruptcy, four hundred copies of the second edition were sold to Stevens & Norton, which firm sued to prevent the younger Benning from publishing a third edition as revised by Forsyth. The Vice Chancellor held that though the plaintiffs might presumably sell the copies, if done without disadvantage to the author, the original contract was not an assignment, but a personal contract which could not pass to the plaintiffs, and therefore denied an injunction. In the second case, where Charles Reade sought to resume his rights in "Peg Woffington" and "Christie Johnstone," from his publisher Bentley, after all expenses had been paid and profits on several editions accounted for, the Vice Chancellor held that the contract, as of a personal nature, could be terminated by the author when that did not involve loss to the other party. Copies printed to replace others destroyed by fire were decided in the case of Blackwood _v._ Brewster, in 1860, in the Scotch Court of Session, not to constitute a new edition. In the later case of Hole _v._ Bradbury, in 1879, a joint author and the heir of a deceased joint author of "A little tour in Ireland" were adjudged by Justice Fry to be entitled to resume their rights and to recover the illustrations from publishers who had succeeded to the business of the original publishing firm.

{Sidenote: Author's transfer to other publishers}

In Warne _v._ Routledge, in 1874, where Mrs. Cook sought to transfer from one publisher to another without notice a book of which 44,000 copies had been printed and 42,000 sold, the plaintiff publisher sought to restrain the defendant from issuing a new edition until the remaining copies had been sold. Sir George Jessel, M. R., held that the right of publishing was an exclusive one for the time of the contract, though the word exclusive was not used, but that the author could provide for publication by another publisher immediately on terminating a contract,--a decision which has been criticized as not compatible with other decisions nor sound law.

{Sidenote: Proprietary name}

Where a proprietary name becomes identified with a publication, an assignment of the work may estop the person named from use of his name or advertisement of his service elsewhere, as in the English case of Ward _v._ Beeton, in 1875, where the originator of "Beeton's Christmas Annual," who had been dismissed by the publishers of that work, was restrained from advertising that he would edit a similar publication for another publisher. But the editor's name is not necessarily part of the title, and an editor may not restrain its omission from the title-page, as was held in the English case of Crookes _v._ Petter, in 1860.

{Sidenote: Copies remaining unsold}

It was decided in the English case of Howitt _v._ Hall, in 1862, by Vice Chancellor Page Wood, that where a publisher had procured from an author the copyright for a limited term, in that case four years, he had the right to sell, after the expiration of the contract term, copies printed in good faith within the term, though the court indicated that if there had been an excessive printing of the work with the evident purpose of stocking up for sale after expiration of the contract, such course would not be permitted. This precedent indicates that a publisher would have the right to sell copies printed during the original term of copyright and remaining in stock, even if an author under the renewal provision of the American code exercised the right to make arrangements with another publisher for the renewal term. To like effect it was decided in the English case of Taylor _v._ Pillow, in 1869, by Vice Chancellor James, that a copyright proprietor assigning the copyright might thereafter dispose of copies of a song remaining unsold, in the absence of stipulations to the contrary. These questions are usually decided in advance in American publishing practice by provision in the contract between author and publisher that copies remaining unsold at the end of the contract term may be reclaimed by the author at a stated price--and some such provision is always desirable.

{Sidenote: American confirmation}

The same doctrine was upheld in the American case of Pulte _v._ Derby, in 1852, in the U. S. Circuit Court by Judge McLean, who held that where the contract for publishing a second edition provided that the publishers might print as many copies as they could sell, the publishers might make successive printings in that edition, and that the use of the words "third edition" on the title-page did not terminate the arrangement. The author could not meantime publish otherwise, but the publishers, who held legal title to the copyright within the terms of the contract, could not exercise rights beyond the second edition, nor could they assign their rights.

{Sidenote: Renewal term}

American publishers usually expect the author to make a contract for the entire copyright period, and to make application in their behalf for the renewal term. It is true that the very large percentage of books lose their value long before the close of the original term, and that the percentage where renewal is desirable is very small.

It was a thought to which "Mark Twain's" mind often recurred that a long copyright term was not desirable, because so few books were of value at the end of one or two decades, and he frequently put forward a scheme for extending copyright from period to period, based on the issuance of a cheap edition under the author's sanction. This scheme, which he presented in some detail at the time of the Congressional copyright hearings, did not receive support from other students and advocates of copyright.

{Sidenote: License not assignment}

A contract giving publishers the "whole and exclusive right of publication," was decided _In re_ Clinical Obstetrics by the Chancery Court, through Justice Warrington, in 1908, to be a personal contract and license, not an assignment of copyright, and the assignment entries were ordered to be expunged, in line with the decision in 1907 by the Court of Appeal in _Re_ "The Liedertafel series" _et al._

{Sidenote: Author's and publisher's profits}

The publication of a book involves many indirect expenses, in addition to the direct cost of manufacture, such as the share of general office expenses, the large item of advertising and the like. These are difficult to allot, and this helps to make the "half profits" system a fruitful occasion of disagreements. On this system or on the commission basis, the nature and proportion of these indirect charges should be clearly set forth in the publishing agreement. On a "half profit" or similar plan, the publisher is not considered to be entitled to make his own profit on paper, printing, etc., but must account for these at the cost to him; and in any event the publishers' accounts must be fully open to the author. On the whole, the payment of royalty, on the usual American plan, is more satisfactory. The customary royalty is ten per cent, or in the case of authors of established reputation whose works have large sale, as high as fifteen or twenty per cent, when the publishers cover all expenses, except that on school books and "subscription" editions the royalty is usually five per cent. When an author pays for the plates or for the edition, the return is substantially higher, as fifteen or twenty per cent to the ordinary author. The royalty is usually reckoned on ordinary cloth binding, unless otherwise stated in the contract, and almost invariably not on copies printed, but on copies sold. A royalty on "all copies sold" was construed in the King's Bench Division by Justice Walton, in Neufeld _v._ Chapman in 1901, to cover all forms of publication, including royalty on a proportionate part of the sales price of a periodical.

{Sidenote: The publisher's share}

The publisher does not, as is sometimes assumed, get the other ninety per cent as profit; he gets the difference between the receipts from the trade or public on copies _actually sold_--averaging perhaps two thirds of the "retail price," on which the author's ten per cent (really thus fifteen per cent) is reckoned--and the cost of making the _entire edition_ and of advertising and marketing the book. The author, in any event, gets a return proportioned to the success of his book. If its sales are small, the publisher makes a loss; if large, the publisher makes a profit increasing proportionately after the initial outlay for publication has been covered.

{Sidenote: "Author's editions"}

{Sidenote: Printer's lien}

When an author arranges with a publisher or printer to issue a book at author's expense, such editions being usually known as "author's editions," great care should be taken to make such arrangements only with publishers or printers of known and high character and to base them on a complete and exact written contract, defining particularly the amount of commission or royalty to be paid by or to the author, or the expenses to be allowed before reckoning "half profits." Publishers of good repute make such arrangements in the case of books not likely to show adequate commercial profit, but there are publishers and printers who make a business of such transactions with authors without adequately providing to give the author the best possible market, and these cannot always be expected to deal fairly with him. Arrangements made directly between an author (or publisher) and a printer as such, are scarcely within the scope of this work, but it may be said briefly that a printer usually has a mechanic's lien on plates he has made or sheets he has printed (but not on plates used by him unless he has made them), until the bills are paid; and that he may not demand payment until the work has been completed, or in case of its destruction by fire or otherwise, previous to complete delivery, in the absence of contract obligation for advance or partial payment.

{Sidenote: Compulsory license system}

The compulsory license system, often miscalled "the royalty plan,"--discussed in England in 1877 as the Farrer proposal and in America about 1890 as the Pearsall-Smith scheme,--is provided by legislation under which any publisher may publish a work without consent of the author provided he pays a royalty as specified or stipulated in the law, as ten or five per cent or a fixed sum per copy. This system has unfortunately been adopted in the new American code, with reference to the mechanical reproduction of music, though with the saving clause that the author has complete right to forbid mechanical reproduction of his musical composition so long as he does not license any manufacturer. This American precedent has been followed as to mechanical music in recent legislation by Germany and other continental countries and in the modified British measure. The Italian copyright law has, however, a compulsory license provision for the second forty years of copyright, under which any publisher can issue a book on payment to the author of five per cent royalty; and the new British measure contains a like provision applicable twenty-five or thirty years after the author's death, on a basis of ten per cent royalty.

{Sidenote: License payments}

The American provision is for two cents for each roll, under elaborate regulations, as set forth in the chapter on mechanical music provisions. It is doubtful whether those regulations can be effectively applied, and indeed the whole provision may prove unconstitutional because of its interference with the right of sale or license involved in private property. The several substitutes for these regulations proposed and discussed, were rejected as even less desirable--as the proposal that the Copyright Office itself should undertake an elaborate system of accounting and guarantee to the author as practically a ward of the state, and another proposal for a system of stamps to be affixed to each copy published, supplied by the Copyright Office or the author and sold to the publisher, a system actually in practice in shoe manufacture under the royalty system of the McKay Shoe Manufacturing Company. The answer to all these schemes is that the author should be at liberty to make such arrangements, by contract with one publisher or with many, as he may please, and that a law to compel him to adopt any one plan of marketing his wares would interfere with his freedom of choice and his natural return.

{Sidenote: Saving through single publisher}