The American Cyclopædia (1879)/Copyright

COPYRIGHT, a right conferred by law upon an author or his representatives to the exclusive sale or use of his intellectual productions. Owing probably to the circumstance that the ideas of property originated in an age of violence, the first laws recognizing property referred wholly to material things; and long before intellectual property acquired a pecuniary value, the laws of property in modern society were established, and it became difficult to admit a new object of property among those recognized by the ancient law. Since 1774 the law of England has been regarded as settled against the perpetual right of the author to his work, and the copyrights of authors in that country as well as in the United States are deemed property only by virtue of statute law. The copyright conferred by the statute applies only to works after publication. Before publication an author has the common law right of property in his manuscript, or other unpublished production. In England, by the act of 1842, copyright extends to 42 years, or for the life of the author and seven years thereafter, whichever period shall prove the longer. Protection is extended to books, maps, charts, pamphlets, magazines, engravings, prints, dramatic and musical compositions, paintings, drawings, photographs, sculpture, models, busts, and designs. Lecturers are also entitled to copyright on their lectures, and musical composers and dramatic authors may secure the sole right of performing their compositions or pieces for the term for which copyrights are granted. In order to secure a copyright an entry is made in the registry books at stationers' hall of the title of the work, the time of its publication, and the name and residence and interest of the proprietor or proprietors. A copy of every book is to be delivered within a month after publication to the British museum, and four copies at stationers' hall, for Oxford and Cambridge universities, the Edinburgh faculty of advocates, and Trinity college, Dublin. The first publication of the book must be within the realm; but such publication may be contemporaneous with publication abroad.—In the United States the authority over this subject is in congress. The act of 1870, which is a substitute for all previous statutes relating to copyright, permits any citizen or resident of the United States who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, or statuary, and of models and designs intended to be perfected as works of the fine arts, to secure a copyright thereof for 28 years, and gives a right to renewal for himself, his widow or children, for 14 years more; and authors may reserve the right to dramatize and translate their own works. The statute also gives to the author of a dramatic composition the sole liberty of publicly performing or representing it, or causing it to be performed or represented by others. A copy of the title of the book or other article, or a description of the painting, statue, &c., must be sent to the librarian of congress before publication, and two copies of the book, or in case of a painting, &c., a photograph of the same, must be sent to such librarian within ten days after publication. The librarian makes the proper record, receiving 50 cents therefor, and 50 cents for any copy, and there is also a small fee for recording and certifying assignments. A copy of any new edition is also to be sent to the librarian, and a penalty of $25 is imposed for any failure to forward such book, &c. The fact of the entry with the librarian is to be stated in each book or on each other article, and a failure to do this will preclude any action for infringement; while the publication of an entry not actually made subjects the party to a forfeiture of $100. Under previous statutes copyright was secured by depositing a printed copy of the title of the work in the office of the clerk of the district court in the district where the author or proprietor resided. The penalty for infringement of the copyright of a book is a forfeiture of the books printed, imported, &c., and such damage as a court may award; in case of maps, charts, prints, cuts, musical compositions, &c., a forfeiture of the plates, sheets, &c., and $1 for every sheet in possession of the guilty party; and in case of a painting, statue or statuary, $10 for every copy in possession; and in case of a dramatic composition, the damages which may be assessed, which shall not be less than $100 for the first and $50 for every subsequent representation. Authors are by the same law protected against the surreptitious publication of their manuscripts, and may recover damages therefor. In England ornamental and useful designs on articles of manufacture, &c., may be copyrighted; but in the United States designs come within the scope of the law concerning patents. It has been held both in England and America that newspapers are not protected by the copyright laws. Copyright is transferable to heirs and assignees. To entitle an author to copyright, his work must be original, and must not have been published or dedicated to the public prior to the application for copyright. Abandonment to the public before copyright renders the work common property, and defeats copyright.—Prior to 1845 the capacity of a foreign author to acquire, or at least to confer upon a British subject, valid copyright, does not seem to have been denied by the English courts. The question was first thoroughly discussed in a court of law in that year, when it was held that a foreigner was entitled to the benefit of the statutes if he had given England the advantage of the first publication of his work. It was not till 1849 that the doctrine was absolutely announced by a court of law that a foreigner resident abroad could not acquire copyright in England or confer a valid title upon an English subject. After much change of opinion on this subject in the English courts, the question was decided by the house of lords in 1854, after an elaborate and exhaustive discussion in the case of Jefferys v. Boosey. The judges were nearly evenly divided in their opinions, but the judgment of the house of lords was that neither at common law nor by statute would English copyright vest in a foreign author while resident abroad. This uncertainty arose from the fact that the language of the statutes passed for the encouragement of learning, from the reign of Anne to the present time, has been general, extending protection to “authors,” and leaving the courts to determine whether that expression included all authors or was limited to British authors. By this and other more recent decisions it has been settled in England that copyright will vest in any person, whether foreigner or citizen, upon three conditions: 1, publication must be in the United Kingdom; 2, there must have been no previous publication; 3, the author must have been at the time of publication within the British dominions. In the case of an English subject, however, presence within the realm is not necessary. When copyright has once vested, protection extends throughout the British dominions, including all parts of Great Britain and Ireland, and all the colonies, settlements, and possessions of the crown. It will thus be seen that the place of publication is limited to a less area than that throughout which protection extends, and within which the presence of the author at the time of publication is required. There may be a contemporaneous publication of the same work abroad, but a prior publication will defeat the copyright. A foreign author therefore may acquire a valid English copyright by first publishing in Great Britain, or publishing there on the day of publication elsewhere, if he be anywhere within the British dominions at the time of such publication. In order to meet this requirement of the law, it has not been uncommon for American authors to go to Canada and remain there during the publication of their work in England, thus acquiring a valid English copyright. In the United States, by the several copyright statutes that have been passed, from the act of 1790 to that of 1870, congress has expressly excluded foreigners from the benefits of copyright, extending protection only to such author as may be a “citizen of the United States, or resident therein.” The judicial construction given to the word “resident” is that it refers to a person residing in the United States with the intention of making that country his place of permanent abode. A formal declaration of such intention is not necessary, nor is any definite period of time indicated as requisite to constitute such residence. The question is determined by the intention of the person at the time he has his abode here, and by his acts so far as they go to show what that intention was. If, at the time of recording his title in order to procure copyright, a foreign author is residing in the United States with the intention of making that country his place of permanent abode, he becomes a resident within the meaning of the act, and entitled to copyright without regard to the length of time of such residence, and notwithstanding the fact that he may subsequently return to his native country. On the other hand, if such author intends to remain temporarily, but actually remains for a long period, he is a mere sojourner, and does not acquire a residence so far as to be entitled to copyright. The assignee of a foreign author, though a citizen of the United States, holds the same relation under the statute as the author himself; so that a citizen is not entitled to copyright in a work which he has purchased from a foreign author.—In Great Britain provision is made for international copyright with such nations as may extend reciprocal protection to British authors. This is effected by an “order of her majesty in council,” by which a foreign author resident abroad, by complying with the statute regulations as to registration, delivery of copies, &c., may secure protection for his work in Great Britain. In these cases it is not essential that first publication shall be in England. There are arrangements for international copyright with France, Prussia, Saxony, Hanover, Belgium, Spain, Italy, and other powers. An arrangement exists between England and France by which the author of a work published in either country may reserve to himself the exclusive right of translating such work for five years from the first publication of the translation authorized by him. No arrangement for international copyright has been entered into by the United States. The leading publishers in the United States are nevertheless accustomed to make a liberal allowance to British authors of established reputation from the profits on their books republished in this country. The difficulty of protecting British copyrights in the colonies has led to the laying of heavy duties for the benefit of their owners on reprints, copies, &c., imported.—In France and Belgium an author, and his widow after him, is entitled to a copyright for life, and the children for 20 years after; and in France the other heirs or assignees for 10 years, and in Belgium for 20 years after the death of the author or his widow. In Germany the copyright is for life and 30 years after. In Greece it is for 15 years from date of publication. In Russia copyright endures for life, and after the death of the author passes to his heirs and assignees for 25 years, and for the further term of 10 years if they shall publish an edition within five years before the expiration of the first term.—Although there had been licensing acts prohibiting the publication of books without the consent of the owner, the first copyright act in England securing to authors the right of property in their works was the statute 8 Anne, chap. 19, passed in 1709. After reciting that “printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families,” it provided that after April 10, 1710, the authors of books already printed who had not transferred their rights, and the booksellers, &c., who had purchased copies, should have the sole right of printing them for 21 years; and that the authors of unpublished books and their assigns should have the sole right of printing the same for 14 years, at the expiration of which the sole right of printing or disposing of copies should return to the author, if living, for another term of 14 years. In 1769 a judgment was rendered by the court of king's bench, Lord Mansfield presiding, in the case of Miller v. Taylor, recognizing a perpetual property at common law in the author and his assigns. The work in controversy was “The Seasons,” by James Thomson, the term of years secured by the statute of Anne having expired. This decision, however, was not long acquiesced in, and in 1774 the house of lords, in the case of Donaldson v. Beckett, declared against the common law right of property in books, although the weight of authority and numbers among the judges was in favor of the perpetuity at common law; and upon the question whether such right was taken away by the statute the judges were divided in opinion. In 1775 an act was passed by parliament which enabled the universities in England and Scotland and several colleges to hold in perpetuity their copyright in books given or bequeathed to them. In 1814 the term of copyright was fixed at 28 years, and during the life of the author if living at the expiration of that period. In 1833 the act 3 William IV., ch. 15, was passed, giving to the authors of dramatic compositions the sole right of representing their plays or causing them to be represented. This was followed by the international copyright act passed in 1838, giving a copyright in England to foreign authors whose governments had extended the same privilege to British authors. In 1842 the laws relating to copyright were revised, the term extended to the life of the author and for seven years after his death, or to 42 years from the first publication. This law, 5 and 6 Victoria, ch. 45, with some slight changes, still remains in force. The first copyright law in the United States was passed in 1790. The term for books then published was 14 years, and for unpublished books the same period with provision for renewal for 14 years. In 1831 a general copyright law was passed granting copyright for 28 years, and providing, for a renewed term of 14 years. In 1856 an act was passed giving to authors the exclusive right of publicly representing or causing to be represented their dramatic compositions. In 1870 all the statutes relating to copyright were repealed by the general copyright law which is now in force.