Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 5, 1892
Mr. Blaine to Sir Julian Pauncefote.
Washington, December 19, 1891.
Sir: Pursuant to the provisions of the copyright act, approved March 3, 1891, the President, on the 1st of July last, issued his proclamation extending the benefits of said act to subjects of Great Britain in consequence of the satisfactory assurances which had been given that in Great Britain and the British Possessions the law permits td citizens of the United States the benefit of copyright on substantially the same basis as to the citizens of those countries.
The assurance given by Her Majesty’s Government in regard to the equal treatment of citizens of the United States throughout the British Dominions in the matter of copyright derives especial emphasis from the circumstance that in applying for the benefits of the act of March 3, 1891, in behalf of British subjects, Lord Salisbury withdrew his first statement, made June 16, 1891, “that English law permits to citizens of the United States of America the benefits of copyright on substantially the same basis as to British subjects,” and substituted therefor, but under the same date, the explicit declaration “that the law of copyright in force in all British Possessions permits the citizens of the United States of America the benefit of copyright on substantially the same basis as to British subjects.”
[Page 258]I am, however, informed that the Government of the Dominion of Canada refuses to admit citizens of the United States to the privilege of registration of copyright in Canada on their complying with the conditions of printing and publishing in Canada, under the assurance so given by Her Majesty’s Government and under the proclamation of the President. By a letter now before me, addressed by J. B. Jackson, registrar of the department of agriculture at Ottawa, to a citizen of the United States, who sought information on the subject, it appears that the ground of this refusal is the allegation “that the enactment and proclamation referred to do not constitute an ‘international copyright treaty,’ and that, therefore, citizens of the United States can not register under our [the Canadian] act.”
I have, accordingly, the honor to ask, through you, an explanation of this important discrepancy between the assurances given by Her Majesty’s Government and the course of the Dominion Government in the matter of the copyright privilege of citizens of the United States. The declaration of Lord Salisbury and its acceptance by the United States Government constituted an international arrangement which this Government desires to observe and maintain in its entirety, and I should much regret if any untoward circumstance should constrain its abandonment or essential qualification.
I inclose for your information copies of a publication showing the President’s proclamation of July 1, 1891, and the assurances upon which it rested.
I have, etc.,
International Copyright.
Act of March 3, 1891.
No 1.
Text of act.
[Public—No. 166.]
AN ACT to amend title sixty, chapter three, of the Revised Statutes of the United States, relating to copyrights.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section forty-nine hundred and fifty-two of the Revised Statutes be, and the same is hereby, amended so as to read as follows:
“Sec. 4952. 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, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in case of dramatic composition, of publicly performing or representing it or causing it to be performed or represented by others; and authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States.”
Sec. 2. That section forty-nine hundred and fifty-four of the Revised Statutes be, and the same is hereby, amended so as to read as follows:
“Sec. 4954. The author, inventor, or designer, if he be still living, or his widow or children, if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first [Page 259] term; and such person shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers printed in the United States for the space of four weeks.”
Sec. 3. That section forty-nine hundred and fifty-six of the Revised Statutes of the United States be, and the same is hereby, amended so that it shall read as follows:
“Sec. 4956. No person shall be entitled to a copyright unless he shall, on or before the day of publication in this or any foreign country, deliver at the office of the Librarian of Congress, or deposit in the mail within the United States, addressed to the Librarian of Congress, at Washington, District of Columbia, a printed copy of the title of the book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or chromo, or a description of the painting, drawing, statue, statuary, or a model or design for a work of the fine arts for which he desires a copyright, nor unless he shall also, not later than the day of the publication thereof in this or any foreign country, deliver at the office of the Librarian of Congress, at Washington, District of Columbia, or deposit in the mail within the United States, addressed to the Librarian of Congress, at Washington, District of Columbia, two copies of such copyright book, map, chart, dramatic or musical composition, engraving, chromo, cut, print, or photograph, or in case of a painting, drawing, statue, statuary, model, or design for work of the fine arts, a photograph of same: Provided, That in the case of a book, photograph, chromo, or lithograph, the two copies of the same required to be delivered or deposited as above 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. During the existence of such copyright the importation into the United States of any book, chromo, or lithograph, or photograph, so copyrighted, or any edition or editions thereof, or any plates of the same not made from type set negatives, or drawings on stone made within the limits of the United States, shall be, and it is hereby, prohibited, except in the cases specified in paragraphs live hundred and twelve to five hundred and sixteen, inclusive, in section two of the act entitled ‘An act to reduce the revenue and equalize the duties on imports, and for other purposes’ approved October first, eighteen hundred and ninety; and except in the case of persons purchasing for use and not for sale, who import, subject to the duty thereon, not more than two copies of such book at any one time; and except in the case of newspapers and magazines, not containing in whole or in part matter copyrighted under the provisions of this act, unauthorized by the author, which are hereby exempted from prohibition of importation: Provided, nevertheless, That in the case of books in foreign languages, of which only translations in English are copyrighted, the prohibition of importation shall apply only to the translation of the same, and the importation of the books in the original language shall be permitted.”
Sec. 4. That section forty-nine hundred and fifty-eight of the Revised Statutes be, and the same is hereby, amended so that it will read as follows:
“Sec. 4958. The Librarian of Congress shall receive from the persons to whom the services designated are rendered the following fees:
- “First. For recording the title or description of any copyright book or other article, fifty cents.
- “Second. For every copy under seal of such record actually given to the person claiming the copyright, or his assigns, fifty cents.
- “Third. For recording and certifying any instrument of writing for the assignment of a copyright, one dollar.
- “Fourth. For every copy of an assignment, one dollar.
“All fees so received shall be paid into the Treasury of the United States: Provided, That the charge for recording the title or description of any article entered for copyright, the production of a person not a citizen or a resident of the United States, shall be one dollar, to be paid as above into the Treasury of the United States, to defray the expenses of lists of copyrighted articles as hereinafter provided for.
“And it is hereby made the duty of the Librarian of Congress to furnish to the Secretary of the Treasury copies of the entries of titles of all books and other articles wherein the copyright has been completed by the deposit of two copies of such book printed from type set within the limits of the United States, in accordance with the provisions of this act and by the deposit of two copies of such other article made or produced in the United States, and the Secretary of the Treasury is hereby directed to prepare and print, at intervals of not more than a week, catalogues of such title entries for distribution to the collectors of customs of the United States and to the postmasters of all post-offices receiving foreign mails; and such weekly lists, as they are issued, shall be furnished to all parties desiring them, at a sum not exceeding five dollars per annum, and the Secretary and Postmaster-General are hereby empowered and required to make and enforce such rules and regulations as shall prevent the importation into the United States, except upon the conditions above specified, of all articles prohibited by this act.”
Sec. 5. That section forty-nine hundred and fifty-nine of the Revised Statutes be, and the same is hereby, amended so as to read as follows:
“Sec. 4959. The proprietor of every copyright book or other article shall deliver [Page 260] at the office of the Librarian of Congress, or deposit in the mail, addressed to the Librarian of Congress, at Washington, District of Columbia, a copy of every subsequent edition wherein any substantial changes shall be made: Provided, however, That the alterations, revisions, and additions made to books by foreign authors, heretoford published, of which new additions shall appear subsequently to the taking effect of this act, shall be held and deemed capable of being copyrighted as above provided for in this act, unless they form a part of the series in course of publication at the time this act shall take effect.”
Sec. 6. That section forty-nine hundred and sixty-three of the Revised Statutes be, and the same is hereby, amended so as to read as follows:
“Sec. 4963. Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, snail be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty and one-half to the use of the United States.”
“Sec. 7. That section forty-nine hundred and sixty-four of the Revised Statutes be, and the same is hereby, amended so as to read as follows:
“Sec. 4964. Every person, who after the recording of the title of any book and the depositing of two copies of such book, as provided by this act, shall, contrary to the provisions of this act, within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, publish, dramatize, translate, or import, or knowing the same to be so printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction.”
Sec. 8. That section forty-nine hundred and sixty-five of the Revised Statutes be, and the same is hereby, so amended as to read as follows:
“Sec. 4965. If any person, after the recording of the title of any map, chart, dramatic or musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of the fine arts, as provided by this act, shall within the term limited, contrary to the provisions of this act, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish, dramatize, translate, or import, either in whole or in part, or by varying the main design with intent to evade the law, or, knowing the same to be so printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such map or other article as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale, and in case of painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale; one-half thereof to the propritor, and the other half to the use of the United States.”
Sec. 9. That section forty-nine hundred and sixty-seven of the Revised Statutes be, and the same is hereby, amended so as to read as follows:
“Sec. 4967. Every person who shall print or publish any manuscript whatever without the consent of the author or proprieter first obtained, shall be liable to the author or proprietor for all damages occasioned by such injury.”
Sec. 10. That section forty-nine hundred and seventy-one of the Revised Statutes be, and the same is hereby, repealed.
Sec. 11. That for the purpose of this act each volume of a book in two or more volumes, when such volumes are published separately and the first one shall not have been issued before this act shall take effect, and each number of a periodical, shall be considered an independent publication, subject to the form of copyrighting as above.
Sec. 12. That this act shall go into effect on the first day of July, anno Domini eighteen hundred and ninety-one.
Sec. 13. That this act shall only apply to a citizen or subject 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; or 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 the conditions as 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.
No. 2.
Washington, May 7, 1891.
Circular to United States ministers.
To ——, Esq., etc.:
Sir: I inclose herewith two copies of an act of Congress, approved March 3, 1891, entitled “An act to amend title sixty, chapter three, of the Revised Statutes of the United States, relating to copyrights.”
You are instructed to transmit a copy of this act to the Government to which you are accredited, and to call attention to the fact that the benefits of the statute are extended to the citizens of foreign states only after a proclamation of the President, to be issued under conditions specified in section 13.
I am, etc.,
No. 3.
Washington, June 27, 1891.
Report to the President on the act of March 3, 1891.
To the President:
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 apply 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.
second condition.
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 [Page 262] 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 “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 “reciprocity in the granting of copyright,” and also that by the terms of the agreement the United States “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 combatted, 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 [Page 263] 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 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.
first condition.
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 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 oar 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.
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 right 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.
[Page 264]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.
By a telegram from our minister in London of June 20, 1891, the Department is informed that Lord Salisbury has substituted for the above assurance the following:
“Her Majesty’s Government are advised that under existing English law an alien by first publication in any part of Her Majesty’s dominion can obtain the benefit of English copyright, and that contemporaneous publication in a foreign country does not prevent the author from obtaining English copyright; that residence in some parts of Her Majesty’s dominions is not a necessary condition to an alien obtaining copyright under the English copyright law, and that the law of copyright in force in all British possessions permits to citizens of the United States of America the benefit of copyright on substantially the same basis as to British subjects.”
It will be seen by comparison that the only change made in the phraseology of the note of June 16 by the later statement communicated by telegraph is in the last clause. This clause in the note of June 16 was “that English law permits to citizens of the United States of America the benefit,” etc.
In place of this the statement now made by the British Government is “that the law of copyright in force in all British possessions permits,” etc.
This assurance is more comprehensive than the first and, as the official statement of the British Government, given in the very language of the first alternative condition of section 13 of the act of March 3, 1891, warrants the inclusion of Great Britain and the British possessions in the proclamation applicable to Belgium and France.
Switzerland.—By a note of the 26th instant, the Swiss minister applies, in behalf of the citizens of Switzerland, for the benefit of our law under the first condition of section 13. To this end he refers us to the law of his country, which contains the following provisions:
“Article 10. The provisions of this act are applicable to authors domiciled in Switzerland; as regards all their works, no matter where those works appear or are published; also to authors not domiciled in Switzerland, as regards works that appear or are published in Switzerland.
“Authors not domiciled in Switzerland enjoy the same rights, as regards works which appear or are published in foreign countries, that are enjoyed by authors of works appearing in Switzerland, provided that the latter receive the same usage in the country concerned as the authors of works published there.
“Art 4. Authors domiciled in Switzerland have the right to give such notice (or make such declaration) in the case of all their works, and authors not domiciled in Switzerland; also, authors not domiciled in Switzerland in the case of works published in foreign countries, but only when the authors of works published in Switzerland receive the same usage in the country concerned that is received by the authors of works published there. Foreign authors of the latter class must meet the requirements of this provision, unless some other arrangement has been made by means of an international convention.”
These provisions, officially presented as constituting a compliance with the first condition of section 13, appear to warrant the inclusion of Switzerland in the proclamation with Belgium, France, and Great Britain.
Annexed hereto is a copy of the act of March 3, 1891, and a form of proclamation.
Respectfully submitted.
Third Assistant Secretary.
No. 4.
Washington, June 8, 1891.
Note to Swiss minister on the Berne Convention.
Sir: I have the honor to acknowledge the receipt of your note of the 29th ultimo, in which you again bring to the attention of the Department the subject of copyright in the United States under the act of Congress of March 3, 1891, by the thirteenth [Page 265] section of which the benefits of the law are, under specific conditions, to be extended to the citizens or subjects of foreign states.
In regard to the citizens or subjects of the states which are parties to the Berne Convention, you make particular inquiry in order to ascertain whether they will be permitted to participate in the benefits of the act after the 1st of July next.
The provision of the act to which your inquiry refers is that in which it is said that the act shall apply 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.
By the words “at its pleasure,” the Department does not understand that Congress intended to extend the benefits of the act immediately and unconditionally to the citizens or subjects of states which were parties to any reciprocal agreement whatsoever to which, without reference to the present law, this Government might become a party through the exercise of the treaty-making power.
It is true that in their broadest sense the words “at its pleasure” might possess such significance, but the Department is of opinion that they were employed to convey an opposite meaning. It seems necessary to interpret them as signifying that the agreement must admit of the adhesion of this Government on the basis of the law in which they are found. In other words the agreement can be said to permit the United States to become a party “at its pleasure” only when such agreement admits of the adhesion of the United States and extends to it the benefits of the conventional guarantees in return for the privileges which the present law affords.
The Department is not assured that the Berne Convention admits of the accession of the United States precisely on the basis of the act of March 3, 1891. For example it is provided in the statute that the copies of the work which are filed for the purpose of obtaining a copyright must be printed from type set within the limits of the United States or from plates made therefrom.
The Department has not been assured that this requirement would not be an obstacle to this Government’s becoming a party to the Berne Convention “at its pleasure.” It is stated that the law of Belgium contains a similar provision as to printing in that country, and Belgium is a party to the Berne Convention; but whether or not there has been a suspension of the Belgian law in that regard in consequence of the convention, the Department is not informed.
The Department is at present engaged in the consideration of several communications touching the application of the act of March 3, 1891. Among thorn are some which contemplate the application of the act on the first of the alternative conditions specified in section 13, namely, the extension of the benefit of the law to the citizens of states or nations which grant to citizens of the United States the benefit of copyright on substantially the same basis as to their own citizens. Where such an assurance as this can be given, the case is greatly simplified.
There is still another suggestion which it may be useful to consider. Assuming that the Berne Convention admits of the accession of the United States without any change in our law, it may be advisable to ascertain whether all or any of the parties to that convention may be able to grant to citizens of the United States the reciprocal privileges intended to be secured by that agreement, before the United States formally becomes a party to it, upon the strength of a proclamation of the President admitting their citizens or subjects to the benefits of the act.
Accept, Mr. Minister, the renewed assurances of my highest consideration.
Acting Secretary.
No. 5.
By the President of the United States of America.
A PROCLAMATION.
Whereas it is provided by section 13 of the act of Congress of March 3, 1891, en titled “An act to amend title sixty, chapter three, of the Revised Statutes of the United States, relating to copyrights,” that said act “shall only apply to a citizen on subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of the copyright on substantially the same basis as its own citizens or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copy right, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement;”
[Page 266]And whereas it is also provided by said section that “the existence of either of the 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:”
And whereas satisfactory official assurances have been given that in Belgium, France, Great Britain and the British possessions, and Switzerland the law permits to citizens of the United States the benefit of copyright on substantially the same basis as to the citizens of those countries:
Now, therefore, I, Benjamin Harrison, President of the United States of America, do declare and proclaim that the first of the conditions specified in section 13 of the act of March 3, 1891, is now fulfilled in respect to the citizens or subjects of Belgium, France, Great Britain, and Switzerland.
In testimony whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
[seal.]
By the President:
William F.
Wharton,
Acting Secretary of
State.