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conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this act may require.'
“By the act of March 3, 1891, amending title 60, chapter 3, of the Revised Statutes of the United States, relating to copyrights, the Government of the United States has undertaken to admit the citizens or subjects of foreign states or nations to the privileges of copyright in this country on either of two conditions. These conditions are expressed in section 13 of that act and are alternative, not concurrent.
“ The first in order of the conditions stated in section 13 is, that the act shall apply to the citizens or subjects of a foreign state or nation, when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens.'
“ The second condition is that the act shall aply to the citizens or subjects of a foreign state or nation when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement.'
“ The existence of either of these conditions is to be determined by the President of the United States “ by proclamation made from time to time, as the purposes of this act may require.'
“ Under this clause it is the duty of the President to withhold, issue, or revoke his proclamation, in accordance with the facts as to the existence or nonexistence of one of the two specified conditions at any particular time.
“ The terms of the first condition are clear, and have not as yet presented any difficulty of interpretation.
“ The terms of the second condition are less determinate and have given rise to much discussion and to variant interpretations. For convenience, we will consider the second condition first.
“ On the 9th of September, 1886, a convention was concluded at Berne, Switzerland, for the establishment of an international union for the protection of literary and artistic works. The parties to this convention were Belgium, Germany, France, Liberia, Spain, Great Britain, Hayti, Italy, Switzerland, and Tunis.
“ The minister of the United States at Berne attended the conference which formed this convention, but only in an ad referendum capacity, and, as the subject of international copyright was then pending before Congress with a view to legislation, the representative of the United States did not sign the convention. By the eighteenth article of the Berne Convention it is provided that countries which have not joined it, but which, ' by their municipal laws, assure legal
protection to the rights of which the convention treats, shall be admitted to accede thereto on their request to that effect.'
“ It has been argued that this eighteenth article of the Berne Convention completely satisfies the second condition specified in section 13 of the act of March 3, 1891, and ipso facto entitles the contracting parties to a proclamation by the President admitting their citizens or subjects to participation in the benefits of that act, without reference to the question whether the present legislation of the United States would be accepted as satisfying the conditions of accession to the convention.
** This argument gives to the words 'at its pleasure,' in the second condition, a very remarkable extension. It disregards not only the declared purpose of the second condition, which was to secure ó reciprocity in the granting of copyright, but the terms prescribed in article 18 of the Berne Convention for the accession of countries not parties thereto.
" It was obviously contemplated in the second condition that wherever it was made the ground of extending to the citizens of foreign nations participation in the benefits of our copyright law it should be possible for the United States by its own voluntary act, " at its pleasure"-to secure for its citizens the benefits of the copyright law of such foreign nations; for it is expressly required that this international agreement shall provide for ó reciprocity in the granting of copyright,' and also that by the terms of the agreement the United States ó may, at its pleasure, become a party.'
“ The argument that the signatories of the Berne Convention are entitled to the benefits of our act merely because that convention provides for the accession of other powers neglects both the reciprocal feature of the second condition as well as the fact that by article 18 of the Berne Convention a condition of accession is prescribed, namely, that the municipal laws of the countries desiring to accede must ' assure legal protection to the rights whereof this convention treats.'
“ The act of March 3, 1891, unquestionably does assure legal protection to the rights of which the Berne Convention treats, but it does so only under certain limitations specified in the act. The most important of these limitations is that found in section 3, which requires that the copies of the book, photograph, chromo, or lithograph deposited to obtain copyright shall be printed from type set within the limits of the United States, or from plates made therefrom, or from negatives or drawings on stone made within the limits of the United States, or from transfers made therefrom.
“ The Swiss minister, representing the Government which is the organ of the signatories of the Berne Convention, has applied for the extension of the benefits of our act to the citizens or subjects of the signatories on the ground of their being parties to that convention.
In response to this application, this Government has inquired whether it can become a party to the Berne Convention upon the basis of the present law, including the requirement as to typesetting, etc., in the United States. The assurance that this very important and indeed essential condition of the law would not prove to be an obstacle to our accession has not as yet been received.
( “If the United States can not become a party to the convention of Berne upon the basis of the act of March 3, 1891, which is the last and the mature expression of the legislative will and pleasure of this country on the subject of international copyright, can it in any proper sense be maintained that the United States may, 'at its pleasure, become a party to that convention? Or, to put the question in another way, can it be contended that the United States may “at its pleasure' become a party to the Berne Convention, if, on making its request for accession under article 18 of that instrument, it is informed that its law does not entitle it to accession?
“ The provision as to typesetting, etc., in the United States, was a very weighty one in the deliberations of Congress upon the adoption of the statute; and, in inserting in the body of the statute a provision for the conditional extension of its benefits to the citizens or subjects of foreign states, it could scarcely have been the intention of Congress to put this Government in the position of extending those benefits to the citizens or subjects of foreign states, while our own citizens were denied reciprocal advantages, except on condition of the repeal of very important provisions of our statute. Such a contention would place Congress in the attitude of passing an act to define the conditions of granting copyright, and at the same time inserting a provision which, if we are to secure reciprocal justice to our citizens, requires the immediate and material alteration of the statute. Not only is such an interpretation unreasonable, and therefore to be avoided, if possible, but it is also directly opposed to the language of the act, which, in the condition now under consideration, clearly discloses the object of obtaining the privileges of copyright for our citizens in foreign countries. It was with this end in view that the extension of the benefits of the act to the citizens of foreign states was made conditional. The construction which we have combated, while extending the privileges of our law to the citizens of foreign states, would actually deprive this Government of the power to exact for our citizens the privilege of copyright in those states. According to this construction an international agreement for reciprocity in copyright might be framed with the deliberate design of excluding the United States, unless it materially and even radically changed its law; and yet, if the agreement contained a stipulation that other countries than those signing might accede, it would be the duty of the President at once to proclaim that the second condition
of section 13 had been fulfilled in respect to the citizens of the contracting parties, and they would immediately enjoy the benefit of copyright in this country, while our citizens would effectually be debarred from obtaining it in theirs. Unless clearly required, a construction leading to such incongruous results should not be adopted, even if it were not, as in the present instance it is, immediately destructive of the declared purpose of the legislature, which was to make the extension of the act to the citizens of foreign states conditional upon the granting of copyright to our citizens in those states.
“In a note to the Swiss minister of the 8th instant, this Department fully explained its interpretation of the second condition expressed in section 13 of the act of March 3, 1891. If the parties to the Berne Convention shall decide that the legislation of the United States entitles this Government to the privilege of accession, on its request to be permitted to do so, there will probably be no difficulty in determining what should be done; for in that case the citizens or subjects of the signatories of that international agreement would, in the opinion of the undersigned, clearly be entitled to the benefit of our law under the second condition of section 13. The United States could then, ' at its pleasure,' become a party to the convention, which also secures a general reciprocity in the granting of copyright among the states of the literary and artistic union. But, until such a decision shall have been made, applications for the benefit of our law should be presented under the first condition of section 13, which we now proceed to consider.
· The first condition specified in section 13 of the act of March 3, 1891, presents no difficulty. It simply extends the benefits of our law to the citizens of any country that extends the benefits of its law to our citizens on substantially the same basis as to its own.
In ascertaining whether this condition is fulfilled, it is entirely irrelevant to inquire whether the foreign law is the same as our own, and grants copyright as freely and fully in every particular. Congress, in acknowledging and protecting the property of the author or artist in the products of his intellect, was not so illiberal as to require that the foreign law should offer a strict reciprocity by containing the same provisions as our own. Such an exaction, involving the assimilation of the laws of all other countries to our own, would have offered a practically impossible condition, incompatible with the purpose of the act and to the last degree restrictive. Congress did not assume such a position. On the contrary, it made the equal participation of our citizens in the benefit of the law of the foreign country, whatever that law might be, the condition of the participation of the citizens of that country in the benefit of our law.
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“There are several countries that have applied, in behalf of their citizens, for the benefits of our law under the first condition specified in section 13.
“Belgium.—In a note of June 9, 1891, the Belgian minister conveys a copy of the law of his country on the subject of literary and artistic copyrights, and informs the Department that 'foreigners enjoy in Belgium, in the matter of artistic and literary protection, the same rights and privileges as natives.'
“ The provisions of the Belgian law are in some respects more liberal than our own, and article 38 of section 7 reads as follows:
“ • Foreigners enjoy in Belgium the rights guaranteed by the present law, but the duration of such rights shall not, in their case, exceed the duration fixed by the Belgian law. Nevertheless, if such rights sooner expire in their own country, they shall cease at the same time in Belgium.'
“ The Belgian law clearly falls within the first alternative condition specified in section 13 of the act of March 3, 1891, and the proclamation of the President may accordingly be issued on the 1st of July, 1891, the date at which the act takes effect.
"France.—The first country to apply in behalf of its citizens for the benefits of the act of March 3, 1891, was France. Communications on the subject were made both to our legation in Paris and through the French minister at this capital to this Department. France claims to have complied with both of the alternative conditions specified in section 13 of our act. It is, however, only the first that we are now considering. We have been furnished with the French legislation on literary and artistic copyrights, and the French minister, in a note of May 25, 1891, declares that the legislation of his country secures to American authors rights that are not only “ substantially” equal to, but identical with, those belonging to French authors.'
“ In respect to French citizens, the proclamation of the President may issue on the same basis as in the case of Belgian subjects.
“Great Britain.—The third country to apply in behalf of its subjects for the benefits of the act of March 3, 1891, was Great Britain.
" In a note to our minister in London of June 16, 1891, Lord Salisbury says:
“Her Majesty's Government are advised that under existing English law an alien by first publication in any part of Her Majesty's dominions can obtain the benefit of English copyright, and that contemporaneous publication in a foreign country does not prevent the author from obtaining British copyright; that residence in some part of Her Majesty's dominions is not a necessary condition to an alien obtaining copyright under the English copyright law, and that English law permits to citizens of the United States of America the benefit of copyright on substantially the same basis as to British subjects.'