Copyright: Its History and Its Law Part 31

{Sidenote: "Country of origin"}

The convention a.s.sures (art. 4, broadening art. II) to authors within the jurisdiction of a unionist country for their works, whether unpublished or published for the first time in one of the countries of the Union, such rights in each other unionist country as domestic laws accord to natives, as well as the rights accorded by the convention, "not subject to any formality" and "independent of the existence of protection in the country of origin," and regulated exclusively according to the legislation of the country where the protection is claimed. The "country of origin" is defined as "for unpublished works, the country to which the author belongs; for published works, the country of first publication" and for works published simultaneously in several countries within the Union (as also in countries without the Union), the unionist country granting the shortest term of protection.

Published works (_oeuvres publiees_) are again defined as works that have been issued (_oeuvres editees_). "The representation of a dramatic or dramatico-musical work, the performance of a musical work, the exhibition of a work of art and the construction of a work of architecture do not const.i.tute publication."

{Sidenote: Broadened international protection}

Authors of a unionist country first publis.h.i.+ng in another country of the Union enjoy (art. 5) in the latter country the same rights as national authors; and authors of a non-unionist country first publis.h.i.+ng a work in any unionist country enjoy (art. 6) in that country the same rights as national authors and in the other Union countries the rights accorded by the convention. This article greatly broadens the scope of the convention, and by recognizing without formalities the rights of authors of non-unionist countries, makes it of a world-wide inclusion for works unpublished or first or simultaneously published within a unionist country, to the full extent of domestic protection in each unionist country, whether the country of origin does or does not grant protection,--thus giving to citizens of the United States full protection throughout unionist countries on the sole condition of first or simultaneous publication within one of them.

{Sidenote: Term}

The convention takes the important step (art. 7) of providing for a uniform term of "the life of the author and fifty years after his death"

in place of the respective national terms, with the proviso that if this term should not be adopted uniformly by all the unionist countries, duration shall be regulated by the law of the country where protection is claimed, but cannot exceed the term in the country of origin. For photographic and a.n.a.logous works, posthumous, anonymous or pseudonymous works, the term of protection is regulated by the law of the country where protection is claimed, but may not exceed the term in the country of origin. The exclusive right of translation is a.s.sured (art. 8) for the entire term. Serial stories and other works published in newspapers or periodicals (art. 9) may not be reproduced, but other newspaper articles may be reproduced by another newspaper if reproduction has not been expressly forbidden, on acknowledgment of the source, but protection is not extended to news of the day or press information on current topics. The right of extract is to be governed (art. 10) by domestic legislation.

{Sidenote: Performing rights, etc.}

The public representation or performance of dramatic, dramatico-musical or musical works, whether published or not (art. 11), and adaptation, dramatization or novelization, etc. (art. 12), are fully included; and this protection applies (art. 13) to the mechanical reproduction of music, with the proviso that this application shall not be retroactive and shall be regulated in each country by domestic legislation.

Infringing mechanical musical appliances may be seized on importation even though lawful in the country from which they come. Cinematograph and a.n.a.logous productions of literary, scientific or artistic works are included (art. 14) as subject to copyright protection.

{Sidenote: Other provisions}

The provisions as to the identification of author or publisher (art. 15) of the work, seizure of infringing works (art. 16) and domestic regulation and supervision (art. 17) are continued. The convention is applied (art. 18) to existing works, provided they have not fallen into the public domain in the country of origin or by expiration of the term in the country where protection is claimed.

{Sidenote: National powers reserved}

It is specially provided (art. 19) that the convention does not prevent "more favorable provisions" through domestic legislation "in favor of foreigners in general"; and the right of any country to make special treaties conferring more extended rights (art. 20) is continued.

{Sidenote: Organization provisions}

The provisions as to the International Bureau made in the Berne protocol are continued (arts. 21-23), and also those as to revision (art. 24) through conferences, to take place successively in the countries of the Union. Accession of other countries (art. 25) and colonies (art. 26) is to be made as heretofore, by notification through Switzerland, and it is provided that acceding countries may adhere to the present convention or those of 1886 or 1896. The present convention is made (art. 27) to replace the Berne convention of 1886 and the Paris acts of 1896, but it is specifically provided that the states signatory to the present convention may declare their intention to remain bound by specific provisions of previous conventions. The convention was to be ratified (art. 28) not later than July 1, 1910, and was to take effect (art. 29) three months thereafter, subject to withdrawal of any country by denunciation on one year's notice, in which case the convention would still remain in force for the other countries. It is specially provided (art. 30) that the states which introduce into their legislation the new term of protection shall notify the Swiss government accordingly, and any renouncements of reservations shall be similarly notified.

{Sidenote: Ratification in 1910}

The Berlin convention was signed in that city November 13, 1908, by the representatives of Germany, Belgium, Denmark, Spain, France, Great Britain, Italy, j.a.pan, Liberia, Luxemburg, Monaco, Norway, Sweden, Switzerland, Tunis, the signatories being in alphabetical order according to the French names of the countries. Ratifications were exchanged in Berlin June 9, 1910, and the convention became operative September 9, 1910. The convention was ratified without reservation by Germany, Belgium, Spain, Haiti, Liberia, Luxemburg, Monaco and Switzerland, and with reservations by France and Tunis (as to works of applied art); j.a.pan (as to exclusive right of translation and the public performance of musical works); Norway (as to works of architecture, periodical articles and retrospective action). Denmark and Italy have not ratified the Berlin convention and therefore remain under the Berne convention and Paris additional act and declaration. Great Britain will be enabled under the new copyright act to accede to the Berlin convention, but has. .h.i.therto remained under the Berne convention and the Paris additional act, and Sweden, not having ratified, remains under the Berne convention and the Paris declaration. Portugal acceded in 1911.

{Sidenote: Official organ}

The official doc.u.ments of the International Copyright Union, and especially accessions thereto, as well as current copyright information from all parts of the world, are given in the _Droit d'Auteur_, published monthly at Berne, under the able editors.h.i.+p of Prof. Ernest Rothlisberger, from the Bureau of the Union, as its official organ.

{Sidenote: Montevideo congress, 1889}

Three years after the Berne convention, a congress of seven of the South American republics was held at Montevideo, at which a convention with reference to literary and artistic copyright was adopted January 11, 1889. The Montevideo convention has been ratified by Argentina (1894), Bolivia (1903), Paraguay (1889), Peru (1889), and Uruguay (1892), though not by Brazil and Chile, which were also partic.i.p.ants in the congress.

It was in general on the lines of the Berne convention, though no mention was made of unpublished works. A work first published or produced in any one of the signatory countries and protected in that country in accordance with its requirements, was also accorded in the other countries the rights secured in the first country, but not for a longer term than was given in the country where protection was claimed.

Dramatic works were specifically and playright impliedly protected.

Provision was made for the inclusion of countries outside of South America, under which Belgium, France, Italy and Spain have become parties to the convention, but only in relation with Argentina and Paraguay.

{Sidenote: Pan American conferences}

In the winter of 1889-1890, the first Pan American conference was held in Was.h.i.+ngton, and at this a committee, of which Andrew Carnegie was the United States member, reported in favor of the adoption of the Montevideo convention. No action seems to have been taken, but it is probably this convention which is referred to as the first Pan American copyright treaty. The second Pan American copyright treaty, according to this numeration, was that adopted at the Pan American conference in Mexico City, signed January 27, 1902, at the same time with the patent and trade-mark treaty. This copyright convention was modeled somewhat on the lines of the Berne convention. At the Pan American conference in Rio de Janeiro, 1906, what is spoken of as the third Pan American copyright treaty, was adopted, and signed August 23, 1906, but this was really not so much a new treaty, as a supplementary convention providing for the development and regulation of international bureaus at Havana and Rio de Janeiro, and its provisions were never put into operation. A fourth Pan American copyright treaty, distinct from patent and trade-mark protection, was adopted at the Pan American conference at Buenos Aires in 1910 and signed August 11, 1910. The Mexico copyright convention was not ratified by the Senate of the United States until 1908 and was proclaimed by the President, April 9, 1908; the Rio convention has never been accepted by the United States; the Buenos Aires convention, replacing that of Mexico, was promptly approved by the U. S. Senate, February 16, 1911, but is yet to be acted upon by the other countries.

{Sidenote: Mexico City conference, 1902}

At the Pan American conference held in Mexico City in 1902, the second copyright convention was signed January 27, 1902, by representatives of Argentina, Bolivia, Colombia, Costa Rica, Chile, the Dominican Republic, Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Paraguay, Peru, Uruguay and the United States, the delegates of Nicaragua, Paraguay and the United States acting _ad referendum_.

{Sidenote: Mexico convention, 1902}

The first article of the Mexico convention formed the signatory states into "a Union for the purpose of recognizing and protecting the rights of literary and artistic property," which was defined (art. 2) as including "books, ma.n.u.scripts, pamphlets of all kinds, no matter what subject they may treat of and what may be the number of their pages; dramatic or melodramatic works; choral music and musical compositions, with or without words, designs, drawings, paintings, sculpture, engravings, photographic works; astronomical and geographical globes; plans, sketches and plastic works relating to geography or geology, topography or architecture, or any other science; and finally, every production in the literary and artistic field, which may be published by any method of impression or reproduction." Copyright was defined (art.

3) as the exclusive right to dispose of the work, to publish, to sell and translate it or authorize translation, and to reproduce it in any manner, in whole or in part.

{Sidenote: Indispensable condition}

The "indispensable" condition of copyright was (art. 4) a pet.i.tion from the author or his representative to the proper office, presumably of his own government, with two deposit copies, and if he desired recognition in other countries, with additional copies for each country designated, which copies were to be forwarded to the respective governments accompanied by a copy of the certificate of registration. Authors were secured (art. 5) in each country the rights granted by their own government within the term of protection of the country of origin--in works published in installments, the term of copyright to date from the publication of each part. The country of origin was defined (art. 6) as that of first publication, or in case of simultaneous publication, that having the shortest period of protection. The name or acknowledged pseudonym on a work (art. 9) was accepted as indication of the author except on proof to the contrary.

{Sidenote: Special provisions}

Authorized translations or those of non-protected works (art. 7) could be copyrighted as original works, but not to the exclusion of other versions of the latter. Newspaper articles might be reproduced (art. 8) on acknowledgment of source and author's name, if given; addresses before legislative a.s.semblies, court or public meetings (art. 10) might be freely reproduced, and extracts made (art. 11) in publications devoted to public instruction or chrestomathy.

"Unauthorized indirect use" or reprint under pretext of annotations or criticism (art. 12) was specified as unlawful reproduction. Pirated copies might be seized (art. 13) in any of the countries, without prejudice to other punishment of the infringer. Each country was to exercise (art. 14) police power in its own jurisdiction. The convention was to become effective for each signatory power three months after communication of its ratification to the Mexican government, and any partic.i.p.ant might withdraw after one year's notice of denunciation, the convention to remain binding on the other powers. The signatory powers were to declare (art. 16) whether they would accept accession from countries unrepresented at the conference.

{Sidenote: Ratification}

The Mexico convention of 1902 was ratified by Guatemala (1902), Salvador (1902), Costa Rica (1902), Honduras (1904) and Nicaragua (1904), and by the United States (1908), perhaps also by the Dominican Republic and Cuba, and does not seem to be operative in the other countries whose representatives signed the treaty.

{Sidenote: Rio de Janeiro conference 1906}

At the third Pan American conference, held at Rio de Janeiro, in 1906, a convention was signed August 23, 1906, to protect patents of invention, drawings and industrial models, trade-marks and literary and artistic property, thus binding in one doc.u.ment patent and copyright protection.

This is usually referred to as the third Pan American treaty, but it has not been accepted by the United States, partly because of objections to patent provisions and the combination of copyright provisions with them.

{Sidenote: Rio provisions}

This Rio convention re-adopted (art. 1) the Mexico treaty, with modifications as stated in the convention. These provided for two international bureaus (art. 2) for the centralization of registrations (art. 3), one at Havana for the United States, Mexico, Central American states, Panama, Colombia and Venezuela, Cuba, Haiti and San Domingo, and one at Rio de Janeiro for Brazil, Argentina and the other South American states, both to have (art. 4) identical systems and books, and to exchange monthly authenticated copies of doc.u.ments, so that the two should practically const.i.tute one bureau. The proper bureau was to receive (art. 5) from each country authenticated copies of its own registrations of patents and copyrights for transmission (art. 6) to the other countries, where they should be given full faith and credit, unless the proper bureau be notified to the contrary within one year.

The registration in one country (art. 7) should have the same effect in each other country, as if made in all, and the term of protection was made that provided by the legislation of the country "where the rights originated or have been recognized," or, if no term is specified, then for patents fifteen years, for designs ten years, both subject to renewals, and for literary and artistic copyright life and 25 years. The expenses of the bureau were to be guaranteed (art. 8) by the several countries in the same proportion as for the bureau of American Republics (now called the Pan American Union) at Was.h.i.+ngton; the two bureaus were placed under the protection of Cuba and Brazil under identical regulations, made by concurrence of the two governments with the approval of the other countries; and an additional registration fee, equivalent to $5, collected in the country of original registration, was to be equally divided for the maintenance of the two bureaus. The bureaus were authorized (art. 9) to (1) collect and publish information, (2) print an official review, (3) to advise the respective governments of defects, (4) to arrange for future international conferences, (5) to make yearly report, (6) to exchange publications with other inst.i.tutions, and (7) to act as cooperative agents for each of the governments concerned. The convention was to become effective (art. 10) on the establishment of one of the bureaus for such countries as should accede to the new convention, the other countries remaining bound by the former convention; and each of the bureaus was to be established (art.

11) as soon as two thirds of the countries in its own group should ratify the convention, and the first bureau established might act temporarily for the other countries. It was finally provided (art. 12) that Brazil should be the intermediary for exchange of ratifications.

{Sidenote: Ratification}

The Rio convention of 1906 was ratified only by Guatemala (1907 and 1909), Salvador (1907), Nicaragua (1908) and Costa Rica (1908), and by Chile (1910); and it never became effective.

{Sidenote: Buenos Aires conference and convention, 1910}

At the fourth Pan American conference, held at Buenos Aires in 1910,--twenty powers, including all the South American countries except Bolivia, being represented,--the fourth copyright convention was signed August 11, 1910. It undertakes to "acknowledge and protect the rights of literary and artistic property," and includes (art. 2) with dramatic and musical works those of a ch.o.r.egraphic character. It retains (art. 4) the definition of the scope of copyright. The provision as to the indicated author is continued (art. 5) in more precise language. It subst.i.tutes for the previous c.u.mbrous method the simple provision (art. 3) "the acknowledgment of a copyright obtained in one State, in conformity with its laws, shall produce its effects of full right in all the other States without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right." It continues (art. 6) the Mexico provisions as to copyright duration. The country of origin is further defined (art. 7) as "that of its first publication in America,"

and in case of simultaneous publication in several of the signatory countries, then that having the shortest term of protection. It specially provides (art. 8) that a work shall not acquire copyright through subsequent editions. It continues also (art. 9) the provisions for copyright in translations. It provides (art. 11) for the protection of "literary, scientific, or artistic writings, ... published in newspapers or magazines." But other articles may be freely reproduced, on acknowledgment of the source, which, however, is not required for "news and miscellaneous items published merely for general information,"--the provisions as to extracts in journals for public instruction or chrestomathy (art. 12) and those as to public addresses (art. 10) subject, however, to the internal laws of each state, being continued. The provisions as to unlawful reproduction (art. 13) are continued, and seizure of pirated copies (art. 14), police powers (art.

15) and provisions for ratification (art. 16) are the same as in the Mexico convention, except that the ratifications and denouncements are to be communicated to the Argentine government. This treaty, approved by the United States Senate, February 16, 1911, and signed by the President, waits other ratification to become effective.

{Sidenote: Attorney-General's opinion on ratification}

{Sidenote: Relation with importation provisions}

The Mexico convention was signed by the United States delegates _ad referendum_, and before submitting it to the Senate for ratification, the President obtained through the Secretary of State an opinion from the Department of Justice, as to any reason against its submission for ratification, especially with reference to the act of 1891. Acting Attorney-General Hoyt replied in a confidential report of June 3, 1902, since made public, after quoting the prohibition of importation in section 3 of the act of 1891: "In the convention now in question there is no inhibition against such importations as are prohibited by said section 3, unless it can be said that such convention is 'an international agreement which provides for reciprocity in the granting of copyrights, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement,' as provided in section 13 of the same act. It is a matter of grave doubt whether this convention, made by the United States originally, is such an 'international agreement.' It is therefore quite probable that its ratification would except the authors of the nations signing it from the provisions of said section 3 of the act of March 3, 1891, leaving the authors of other countries still subject to such provisions. Your attention is directed to the fact that an affirmative answer to article 16 of the convention would also except from the provisions of said section 3 all countries that might hereafter adopt said convention.