Copyright: Its History and Its Law

Interstate and international relations

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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).

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

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.

The German publishing law of 1901

Editions

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.

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.

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.

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.

Accidental destruction

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.

Bankruptcy of publisher

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.

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.

The publisher as merchant

"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.

"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.

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.