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International Copyright Act of 1886 (Imp.) is in force in Canada,58 and brings into operation there the original Berne Convention,59 as modified by the Additional Act of Paris. Accordingly compliance with the conditions and formalities of the country where a literary work is first produced, if it is a country belonging to the copyright union, confers copyright in Canada without compliance with the Canadian statute.

Foreign reprints. Canada at one time took advantage of the Foreign Reprints Act,62 and during that period importation into Canada of unauthorized foreign reprints of works protected by English copyright was not illegal.63 The full effect of the Foreign Reprints Act was to permit importation; it did not permit reprinting within the dominion. The collection of duty on imported reprints for the benefit of the copyright proprietor was discontinued by the Canadian Tariff Customs Act of 1894,65 and since that time the prohibition against importation has been operative. The Imperial Customs Act of 1876 requiring notice to the customs officials when it is desired to prevent importation of reprints does not apply to Canada.

[ 0 79] (2) South African Union. The act of 1911 has not as yet been made operative in the South African Union, and consequently the repealed imperial statutes are in force and govern imperial copyright. The same considerations are applicable here as in the case of Canada.69 Local copyright in Cape Colony, Natal, and the Transvaal

is governed by the statutes of these respective col

The Orange Free State has no legislation on the subject of copyright."

[80] (3) Newfoundland. Newfoundland has accepted the act of 1911, which is accordingly operative there.72 It has also adhered to the Berlin Convention and is therefore part of the International Copyright Union as from July 1, 1912."

[$ 81] (4) Australia Australia has declared the British act of 1911 to be in force as from July 1, 1912,74 with modifications applicable to Australian authors and works.75 By order in council Australia bas adhered to the Berlin Convention, and is a member of the International Copyright Union."

[682] (5) New Zealand. New Zealand has passed a copyright act," and while it does not accept the British act of 1911, it does grant “adequate protection” to British subjects, and therefore it comes under the provisions of that act as to reciprocal protection between the self-governing dominions inter sese and with the mother country subject to the issuance of the necessary orders in council." New Zealand has also adhered to the Berlin Convention, and is a party to the International Copyright Union as from April 1, 1914.79 Formerly New Zealand had local copyright acts,so and the British imperial acts81 also extended to New Zealand.82

[ Ø 83] (6) India. The Copyright Act of 1842 formerly extended to India,83 but as India is not one of the self-governing dominions,84 the



58. Hubert v. Mary, 15 Que. K. out the formality of any registration. , suspension so long as the provisions B. 381.

It cannot be seriously pretended for of the Canadian Act of 1850, under International copyright see infra a moment that once foreign authors which the twelve and a half per cent. $ 453 et seq.

are exempt from the formalities re- was collected, continued in force International copyright relations of quired for British authors in Great within Canada. I am, therefore, of United States see infra § 454.

Britain, those authors should be opinion that the objection taken by 59. See infra § 455.

obliged to fulfill in the colonies of the defendants is not sustainable, "Upon the formation of the Inter- Great Britain the formalities pro- and that, on that ground, the plainnational Copyright Union under the vided in the laws of each of those

tiffs' copyright is in force in Canada, Berne Convention of

1887, Great colonies. Any such pretension is and they are entitled to prohibit the Britain sought and obtained the con- against the spirit and letter of the importation of foreign reprints into sent of all her self-governing pos- Convention of Berne. Any such pre-Canada." Morang

Publishers' sessions to accept the Convention on tension would place the colonies of

Syndicate, 32 Ont. 393, 403, 21 Can their behalf. Canada's consent was Great Britain in a more favorable LTOcc Notes 77. given on the express condition that position than Great Britain herself;

67. she should be free to withdraw from

Imperial Book Co. v. Black, 35 in itself an absurd conclusion

Can. S. C. 488 [dism app 8 Ont. L. 9, the Union at any time, and she has Finally, any such pretension is de

(dism app_5 Ont. L. 184 (rev 1 Ont since repeatedly urged the Imperial stroyed by the formal texts of the

WR 743])). authorities to give the required English statutes." Hubert v. Mary,

68. See supra 77. notice of her denunciation, but this supra.

69. See supra § 78. they have refused to do. Canada 62. See supra $ 77 text and notes

70. See statutory provisions. therefore remains an unwilling 21-23. member of the Union and bound

71. Copinger Copyright (5th ed)

63. Morang V. Publishers' Synby the provisions of the International | dicate, 32 Ont. 393,


p 346. CanLTOcc

72. Act, 1912 (2 Geo. V c 5). Copyright Act passed in order to Notes 77 (giving the history of leg

73. give effect

the Convention islation on this subject); Smiles v.

Copinger Copyright (5th ed) p

345. throughout the Empire." Copyright Belford, 23 Grant Ch. (U. C.) 590

1912 in Canada, 49 AmL Rev 675, 678.

74. Copyright Act, [app dism 1 Ont. A. 436).

(Aus"The Dominion of Canada and the 64 Smiles v. Belford, 23 Grant

tralian Acts (1912) No. 20 § 8).

75. Union of South Africa continue sub- Ch. (U. C.) 590 (app dism 1 Ont.

See supra § 77. ject to the Berne Convention, 1886, A. 436); Morang v. Publishers' Syn

76. Copinger Copyright (5th ed) and the Additional Act of Paris, 1896, dicate, 32 Ont. 393, 21 CanLTOcc

pp 338, 349. Notes 77.

77. Copyright until Great Britain has acceded on

Act, 1913 (New their behalf to the Berlin Convention,

65. St. 57 &58 Vict. c 33.

Zealand St. [1913) No. 4). 190€." Robertson Copyright (Suppl.


78. Black v. Imperial Book Co., 5

See supra | 77 text and note

36. 1915) p 17. To same effect Copinger Ont. L. 184_sapp dism 8 Ont. L. 9];

79. Copyright (5th ed) p 338. Morang v. Publishers' Syndicate, 32

Copinger Copyright (5th ed) 60.

Mary v. Hubert, 15 Que. K.

393, 21 CanLTOcc Notes

p 350.


Anglo-Canadian B. 381.

Music Publishers'

80. "The Fine Arts Copyright Act

1877, Assoc. v. Dupuis, 27 Que. Super. 485, [a] The Berlin Convention which

Amendment Act 1879." revised the Convention of Berne is 5 Que. Pr, 351.

also Ex p. Dobson, 12 New Zeal. L. not in force in Canada, because the (a) “The effect of the repeal, at 171 (construing above act).

81. the revision of 1886, of the Act of imperial act of 1911, and the orders

See supra § 77. in council issued thereunder, which

1850, and the abandonment in 1895 82. Ex p. Dobson, 12 New Zeal. L. put the convention in force, not

of the collection of the twelve and a 171. extend to self-governing dominions. half per cent. ad valorem duty upon

83. MacMillan v. Khán Bahadur See supra § 77. See also orders in foreign reprints for the benefit of the Shamsul Ulama M. Zaka, [1895] 19 council of June 24, 1912, and of owner of British copyright, revived Indian L.

R. (Bombay)

557. 567. Febr. 3, 1915 (relating to United the provisions of the Imperial Act of See also supra § 77 text and note 7. States).

1847, prohibiting the importation of "The statute at present in force 61. Hubert v. Mary, 15 Que. K. | foreign reprints of British copy- (i. e. in 1895) is 5 and 6 Vict., cap. B. 381, 383 [aff 29 Que. Super. 334). / rights, for the Imperial Act of 1847 45, of which the Indian Act XX of

"It is clear this Court that and the order of the Queen in coun- 1847 is a reproduction with certain copyright obtained by a foreigner in cil under which the prohibitions con- necessary alterations." MacMillan v. his own country, if it is a party to tained in the Act of 1842 against the Khán Bahadur Shamsul Ulama M. the Convention of Berne, protects importation of foreign reprints were Zaka, supra. him through the British Empire with I suspended only provided for such 84. See supra $ 77 text and note 3.






former imperial statutes85 were repealed as to India by the act of 1911 which came into force in India, according to its terms, by proclamation on October

1912. Modifications and additions applicable to local works have been made by local statute.87

[0 84] (7) Cyprus. The act of 1911 has been extended to the island of Cyprus by Order in Council,88 and by like order the Berlin Convention has also been put in force in Cyprus.89

[j 85] B. Constitutionality of Statutes-1. Tederal Statutes. Under the constitution, congress is authorized to enact copyright legislation to pronote the Progress of Science and Useful Arts, and this is to be done by securing to “Authors,'' for “limited Times,” the exclusive right to their respective “Writings.”' 90 All valid copyright legislation must conform to the limitations of this grant. Thus the “exclusive right can be conferred only for a “limited” period of time, 92 although the length of that period is within the dis

cretion of congress. So the copyright granted must have some relation to the “useful arts' to promote which it is granted,94 but the “useful,” in this connection, is not limited to that which satisfies immediate bodily needs.95 Printing and engraving, although not for a mechanical end, are not excluded from the useful arts which congress is empowered to promote by copyright legislation.36 Only what may be denominated the writings” of an "author" may be granted copyright protection.” This involves a requirement that the matter protected shall be originalo and the product of the creative powers of the mind.99 But the term “writings” has been given a very broad and comprehensive meaning as applied to permissible subjects of copyright. It includes not only ordinary literary works which may be reproduced in letter press and the words of which may be read, but the term also included photographs, photographic nega



85. See supra $ 77.
CCA 250.

strictly literary had not yet been 86. See 1 & 2 Geo. V c 46 8 37 "The clause of the Constitution mooted. The great case of Donald(2) (d).

under which Congress is authorized son v. Beckett, 2 Brown, Parl. Cas. 87. Indian Copyright Act, 1914 to legislate for the protection of au- 129, had been decided only thirteen (No. 3 of 1914).

thors and inventors is contained in years previously. The business world, 88. Order in Council, June 24, the eighth section of article one, that in this day permits nothing to 1912; Statutory Rules and Orders, which declares that the Congress escape as a means for its exploita1912, No. 912. See 1 & 2 Geo. V c shall have power to promote the tion had not yet pressed into her 46 $ 28.

progress of science and useful arts, service art and books. Business 89. Order in Council, June 24, | by securing for limited times to au- catalogues, circulars containing 1912; Statutory Rules and Orders, thors and inventors the exclusive market quotations, sheets, such as 1912, No. 913.

right to their respective writings and Dun's and Bradstreets' directories-90. Const. art 1 8 8.

discoveries.' This provision evi- the whole staff of aides-de-camp to 91. Pennock v. Dialogue, 2 Pet. dently has reference only to such commerce, now familiar to all-were (U. S.) 1, 7 L. ed. 327; Barnes v. writings and discoveries as are the then practically unknown. In the Miner, 122 Fed. 480. And see cases result of intellectual labor. It was public mind, the publication of a passim this section.

so held in U. S. v. Steffens, 100 U. S. book meant that literature, as litera92. Pennock v. Dialogue, 2 Pet. 82, 25 L. ed. 550, where the court said ture, had received an accession. (U. S.) 1, 7 L. ed. 327.

that 'while the word writings may be Unquestionably, the framers of the 93. Pennock v. Dialogue, 2 Pet. liberally construed, as it has been, to constitution, in vesting Congress (U. S.) 1, 7 L. ed. 327.

include original designs for engrav- with 'power to promote the progress “The constitution of the Unitedings, prints, etc., it is only such as of science and the useful arts, by States has declared that congress are original, and are founded in the securing for limited times to authors shall have power to promote the creative powers of the mind.' It and inventors exclusive right to their progress of science and useful arts, does not have any reference to labels respective writings and discoveries.' by securing for limited times, to au- which simply designate or describe had this kind of authorship in mind; thors and inventors, the exclusive the articles to which they are at- and were the intention of the framers right to their respective writings and tached, and which have value of the constitution to give boundary discoveries.' It contemplates, there- separated from the articles; and no to the constitutional grant, many fore, that this exclusive right shall possible influence upon science or the writings, to which copyright has exist but for a limited period, and useful arts."

Higgins V. Keuffel, since been extended, would have been that the period shall be subject to supra.

excluded. But, here as elsewhere, the discretion of congress.” Pennock 1. Courier Lith. Co. v. Donaldson the constitution, under judicial conv. Dialogue, 2 Pet. (U. S.) 1, 16, 7 L. Lith. Co., 104 Fed. 993, 44 CCA 296 struction, has expanded to new coned. 327.

(rev on other grounds 188 U. S. 239, ditions as they arose. Little by little 94. Bleistein V. Donaldson Lith. 23 SCt 298, 47 L. ed. 460]; U. S. v. copyright has been extended to the Co., 188 U. S. 23 9, 242, 23 Sct 298, Steffens, 100 U. S. 82, 25 L. ed. 550; literature of commerce, so that it 47 L. ed. 460; Barnes V. Miner, 122 Meccano v. Wagner, 234 Fed. 912; J. now includes books that the old guild Fed. 480.

L. Mott Iron Works v. Clow, 82 Fed. of authors would have disdained; 95. Bleistein v. Donaldson Lith. 316, 27 CCA 250.

catalogues, mathematical tables, staCo., 188 U. S. 233, 24 9, 23 Sct 298, 47 [a] The word "writings" (1) with tistics, designs, guide-books, directL. ed. 460 (rev 104 Fed. 993, 44 CCA reference to protection by copyright ories, and other works of similar 296).

is not limited to the actual script of character. Nothing, it would seem, "The Constitution does not limit the author, but includes his printed evincing, in its makeup, that there the useful to that which satisfies books and all forms of writing, print- has been underneath it, in some subimmediate bodily needs." Bleistein ing, engraving. etching, etc., by stantial way, the mind of a creator v. Donaldson Lith. Co., supra.

which the ideas in his mind are or originator, is now excluded. A 96. Bleistein V. Donaldson Lith. given visible expression. A photo- belief that in no other way can the Co., 188 U. S. 239, 23 SCt 298. 47 L. graph which is not only a light- labor of the brain, in these useful deed. 460 (rev 104 Fed. 993, 44 CCA 296) written picture of some object, but partments of life, be adequately pro(holding copyright on circus posters also an expression of an idea, or tected, is doubtless responsible for valid).

thought, or conception of the one this wide departure from what was 97. Higgins v. Keuffel, 140 U. S. who takes it, is a "writing' within unquestionably the original purpose 428, 11 SCt_731, 35 L. ed. 470 [aff 30 the constitutional sense, and a proper of the constitution. But, obviously, Fed. 627); Burrow-Giles Lith. *Co. v. subject of copyright. American Mu- there is a point at which this process Sarony, 111 U. S. 53, 4 Sct 279, 28 toscope, etc., Co. v. Edison Mfg. Co., of expansion must cease." National L. ed. 349 saft 17 Fed. 591); U. S. v. 137 Fed. 262, 265. (2) The word Tel. News Co. v. Western Union Tel Steffens, 100 U. S. 82, 25 L. ed. 550; "writings" includes maps, charts, Co., 119 Fed. 294, 297, 56 CCA 198, 60 White-Smith Music Pub. Co. v. Apollo engravings, etchings, prints, paint- LRA 805. Co., 139 Fed. 427 [aff 147 Fed. 226, 77 ings, drawings, chromos, statues,

2. American Mutoscope, etc., Co. CCA 368 (aff 209 U. S. 1, 28 SCt 319, models, designs, photographs, and V. Edison Mfg. Co., 137 Fed. 262. 52 L. ed. 655, 14 AnnCas 628)); the negatives thereof, dramatizations And cases infra this section passim. Courier Lith. Co. v. Donaldson Lith. of copyrighted works, and may also 3. Thornton v. Schreiber, 124 U. S. Co., 104 Fed. 993, 44 CCA 296 (rev on be extended to moving pictures tend- 612, 8 SCt 618, 31 L. ed. 577; Burrowother grounds 188 U. S. 239, 23 SCt ing to reproduce an artist's concep- Giles Lith. Co. v. Sarony, 111 U. S. 298, 47 L. ed. 460); J. L. Mott Iron tion of an author's situation as de- 53, 4 SCt 279, 28 L. ed. 349 saff 17 Works v. Clow, 82 Fed. 316, 27 CCA scribed in words. Harper v. Kalem Fed. 591); Harper v. Kalem Co., 169 250.

Co., 169 Fed. 61, 64, 94 CCA 429 [aff Fed. 61, 94 CCA 429 [aff 222 U. S. 55, 98. Originality and authorship see 222 U. S. 55, 32 SCt 20, 56 L. ed. 92, 32 SCt 20, 56 L. ed. 92, AnnCas1913A infra 88 91-97. AnnCas1913A 1285).

1285]; American Mutoscope, etc., Co. 99. Higgins v. Keuffel, 140 U. S. [b] Constitutional growth.-"But v. Edison Mfg. Co., 137 Fed. 262. 428. 430, 11 SCt 731, 35 L. ed. 470 when the federal constitution was (a Construction of statute to in(aff 30 Fed. 627); J. L. Mott Iron adopted, the application of this right clude photographs.-"The construcWorks Co. v. Clow, 82 Fed. 316, 27 to productions other than those tion placed upon the Constitution by




tives, motion picture films, pictures, sculptures clusive performing rights in dramatic or musical or other works of art, musical compositions, maps compositions may be, and have been, granted,15 and and charts, drawings, and the like. The limita- protection has been extended to the mechanical tion of power to the protection of writings only ex- means of reproduction, such as perforated musie cludes the power to grant protection to, or a mo- rolls and disc records.16 nopoly in, mere ideas or intellectual concepts apart Unreasonable searches and seizures. The constifrom the concrete embodiment of them in a particu- tutional provisions against unreasonable searches lar “writing." 12

But notwithstanding this rule, and seizures?? are not violated by the admission in congress has power to extend copyright protection cvidence of the replevin proceedings under which to dramatizations of copyright works,18 including infringing copies were seized," nor by compelling public representation by moving pictures.14


production of the books and papers of a corporate the first act of 1790, and the act of U. S. 53, 57, 4 sct 279, 28 L. ed. 349 107-109. 1802, by the men who were contempo- (aff 17 Fed. 591).

14. Kalem Co. v. Harper, 222 U. S. rary with its formation, many of Photographs as subjects of copy- 55, 63, 32 sct 20, 56 L. ed. 92. Ann whom were members of the conven- right see infra § 118.

Cas1913A 1285 (aff 169 Fed. 61. 94 tion which framed it, is of itself en

Harper v. Kalem Co., 169 Fed. CCA 429); Atlas Mfg. Co. v. Street, titled to very great weight, and 61, 94 CCA 429 [aff 222 U. S. 55, 32 204 Fed. 398, 122 CCA 568, 47 LRANS when it is remembered that the Sct 20, 56 L. ed. 92, AnnCas1913A 1002. rights thus established have not 1285).

"It is argued that the law conbeen disputed during a period of 5. Harper v. Kalem Co., 169 Fed. strued as we have construed it goes nearly century, it is almost 61, 94 CCA 429 (aff 222 U. S. 55. 32 beyond the power conferred upon conclusive. Unless, therefore, pho- sct 20, 56 L. ed. 92, AnnCas1913A Congress by the Constitution, to tographs can be distinguished

in 1285):
See also infra note 14.

secure to authors for a limited time the classification on this point Motion pictures as subjects of the exclusive right to their writings. from

maps, charts, designs, copyright see infra 88 120-122.

Art. I, 8, cl. 8. It is suggested engravings, etchings, cuts, and 6. Bleistein v. Donaldson Lith. Co., that to extend the copyright to a other prints, it is difficult to see why 188 U. S. 239, 23 SCt 298, 47 L. ed. case like this is to extend it to the Congress cannot make them the sub460 [rev 104 Fed. 993, 44 CCA 296);

ideas as distinguished from the ject of copyright as well

National Cloak, etc., Co. v. Kaufman,

words in which those ideas are others. These statutes certainly 189 Fed. 215, 217; Harper v. Kalem clothed. But there is no attempt to answer the objection that books only, Co., 169 Fed. 61, 94 CCA 429 (aff 222 make a monopoly of the ideas exor writing in the limited sense of a U. S. 55, 32 SCt 20, 56 L. ed. 92, Ann pressed. The law confines itself to a book and its author, are within the Cas1913A 1285). See also infra 88 particular, cognate and well known constitutional provision. Both these | 114-116, 117, 119.

form of reproduction. If to that exwords are susceptible of a more en- "The act (section 5 [k]) expressly tent a grant of monopoly is thought larged definition than this. An au- mentions 'pictorial illustrations' as a proper way to secure the right to thor in that sense is 'he to whom the proper subject of copyright, and the writings this court cannot say anything owes its origin; originator; they are now considered the writing that Congress was wrong." Kalem maker; one who completes a work of of an author' as contemplated by sec

Co. v. Harper, supra. science literature.' Worcester. tion 8, art. 1, of the constitution." [a] Reason for rule-"It is argued So, also, no one would now claim that National Cloak, etc., Co. v. Kaufman, from this that, as these moving picthe word writing in this clause supra.

tures only express the artist's conof the Constitution, though the only 7. See infra 88 114-116.

ception of the author's ideas as exword used as to subjects in regard to 8. See infra 88 110, 111.

pressed in the words of the copywhich authors are to be secured, is 9. Burrow-Giles Lith.

Co. v.

righted book or dramatic composilimited to the actual script of the Sarony, 111 U. S. 53, 4 SCt 279, 28 L.

tion, they cannot be said to infringe author, and excludes books and all ed. 349 [aff 17 Fed. 591); Harper v.

the author's rights. But the history other printed matter. By writings | Kalem Co., 169 Fed. 61, 94 CCA 429 of the copyright law does not justify in that clause is meant the literary (aff 222 U. S. 55, 32 Sct 20, 56 L. ed. so narrow a construction of the word productions of those authors, and


AnnCas1913A 1285). See also 'writings.' The first copyright law Congress very properly has declared infra 8 $ 112, 113.

of 1790 (Act May 31, 1790, c. 15, 1 these to include all forms of writing, 10. Harper v. Kalem Co., 169 Fed. Stat. 124), included maps and charts printing, engraving, etching, &c., by 61, 94 CCA 429 [aff 222 U. S. 55, 32 as well as books. In 1802 (Act April which the ideas in the mind of the SCt 20, 56 L. ed. 29, AnnCas1913A

29, 1802, c. 36, 2 Stat. 171) copyright author are given visible expression. | 1285]. See also infra § 117.

was extended to engravings, etchings, The only reason why photographs 11. What may be copyrighted see

ard prints. In 1856 (Act Aug. 18, were not included in the extended list infra $$ 90-143.

1856, c. 169, 11 Stat. 138) it was exin the act of 1802 is probably that 12. Kalem v. Harper, 222 U. S. 55,

tended in the case of copyrighted they did not exist, as photography 32 Sct 20, 56 L. ed. 92, AnnCas1913A

dramatic compositions to the right of as an art was then unknown, and the 1285; White-Smith Music Pub. Co. v. publicly performing the same. In scientific principle on which it rests, Apollo Co., 139 Fed. 427, 430 [aff 147

1870 (Act July 8, 1870, c. 230, 16 Stat. and the chemicals and machinery by Fed. 226, 77 CCA 368 (aff 209 U. S. 212) it was extended to paintings, which it is operated, have all been 1, 28 SCt 319, 52 L. ed. 655. 14 AnnCas drawings, chromos, statues, models, discovered long since that statute 628)). See also infra § 267.

designs, photographs, and the negawas enacted. Nor is it to be sup- "The meaning of the word 'writ

tives thereof, and the authors were posed that the framers of the Con- ings, as employed in the Constitu

so allowed to reserve the right to stitution did not understand the tion, has been expressly defined in

dramatize their works. In 1891 (secnature of copyright and the objects Burrow-Giles Lith. Co. V. Sarony,

tion 4952, Rev. St. U. S.) authors and to which it was commonly applied, 111 U. S. 53, 4 SCt 279, 28 L. ed.

their assigns were given the exclufor copyright, as the exclusive right 349, to include all forms of writ

sive right to dramatize their copyof a man to the production of his ing, printing, engraving, etching, righted works.

The construction of own genius or intellect, existed in etc., by which

the ideas in the

the word 'writings' to cover these England at that time, and the con- mind of the author are given

various forms of expression, and also test in the English courts, finally de- visible expression.' The restricted to cover the right of giving public cided by a very close vote in the definition of the word 'writings' performances, has been acquiesced in House of Lords, whether the statute does not, it is thought, permit

for over 50 years. In view of this of 8 Anne, chap. 19, which authorized the inclusion in section 4952 of the fact, we have no difficulty in concopyright for a limited time, was a Revised Statutes [U. S. Comp. St. cluding that moving pictures would restraint to that extent on the com- 1901 p 3406] of a musical concep- be a form of expression infringing mon law or not, was then recent. tion,


the inclusion of collated not the copyrighted book or drama, It had attracted much attention, as musical sounds or expressions of a but infringing the author's exclusive the judgment of the King's Bench, musical composition, The words of right to dramatize his writings and delivered by Lord Mansfield, holding the statute have reference to the publicly to perform such dramatizait was not such a restraint, in Miller tangible object that appeals to the tion." Harper v. Kalem Co., 169 Fed. V. Taylor, 4 Burr. 2303, 98 Reprint sense of sight, and that which is 61, 64, 94 CCA 429 [aff

222 U. S. 55, 32 201, decided in 1769, was overruled susceptible of being reproduced by Sct 20, 56 L. ed. 92, AnnCas1913A 1285]. on appeal in the House of Lords in printing. copying, publishing, etc." Motion pictures

as subjects of 1774. Ibid. 2408. In this and other White-Smith Music Pub. Co.

V. copyright see infra 88 120-122. cases the whole question of the ex- Apollo Co., supra.

15. Harper v. Kalem Co., 169 Fed. clusive right to literary and intel- Right conferred by copyright see 61. 94 CCA 429 [aff 222 U. S. 55, 32 lectual productions had been freely | infra $ $ 264-271.

SCt 20, 56 L. ed. 92, AnnCas1913A discussed. We entertain no doubt Infringement see infra § 263 et 1285). See also infra 88 107-111. that the Constitution is broad enough seg.

16. See also infra § 123. to cover an act authorizing copyright 13. Kalem Co. v. Harper, 222 U. S. 17. U. S. Const. Amendms. IV, V. of photographs, so far as they are 55. 32 SCt 20, 56 L. ed. 92, AnnCas 18. American Tobacco Co. representatives of original intel- 1913A 1285 [aff 169 Fed. 61, 94 CCA Werckmeister, 207 U. S. 284, 28 SCt lectual conceptions of the author." 429).

72, 52 L. ed. 208, 12 AnnCas 595 [aff Burrow-Giles Lith, Co. v. Sarony, 111 Dramatic copyright see infra 88 146 Fed. 375, 76 CCA 647].




defendant on a subpena duces tecum.19

ascertain the legislative intent, regard must be had [ 0 86] 2. State Statutes. At least to the extent to the objects and purposes sought to be attained.24 that congress has exercised its power to legislate The main purpose of the copyright statutes has been on the subject of copyright, its regulations are to secure to the author the exclusive right to paramount and exclusive, and any state legislation inultiply copies of his work,25 and to increase the

26 on the same subject is unconstitutional and void.20 stock of literature of the country.? The failure of Whether or not there is any portion of the general congress specifically to legislate concerning matfield not covered by the congressional legislation, ters which have repeatedly been decided by the and to which state legislation might constitutionally courts, although amending the copyright act in extend, seems not to have become the subject of cther respects, may be taken to be an acquiescence judicial decision, and admits of substantial doubt.21 in the judicial construction given to the copySuch power has been assumed and exercised, how- right laws.27 The history of the bill in congress, ever, in a number of states, by statutes against the and the contemporaneous construction by the deunauthorized performance or publication of dra- partments or officers of the United States29 may be matic, musical, or operatic works, to which refer- referred to in construing the act. Each part of the ence has been made.?

act should be so construed as to give effect to the Taxation. A statute assuming to tax a copyright legislative intent in the enactment of every other

30 secured under the laws of the United States is part. It was the purpose of congress to include void.23

in the act of 1909 all laws on the subject of copy[6 87] C. C. Construction and Operation-1. In


This act excepted from its operation General In construing the copyright laws to causes of action for infringements already com

19. American Lith, Co. v. Werck- or to prolong the time for the con- whether that work be scientific, litermeister, 221 U. S. 603, 31 SCt 676, 55 tinuance of the same. Evans

ary, or artistic. The protection of L. ed. 873.

Robinson, 8 F. Cas. No. 4,571, Brunn. authors, whether of inventions, works [a] The protection against un- Coll. Cas. 400. See also Patents (30 of art, or of literary compositions, is reasonable searches and seizures Cyc 820).

the object to be attained by all afforded by Const. Amendm. IV can- 22. See supra $ 70.

patent and copyright laws. The Acts not ordinarily be invoked to justify 23. Peo. y. Roberts, 159 N. Y. 70, are to be construed with reference the refusal of an officer of a corpora- 53 NE 685, 45 LRA 126 (rev 35 App. to this purpose. On the other hand, tion to produce its books and papers Div. 624, 54 NYS 1112].

care must always be taken not to in obedience to a subpena duces

Taxation of federal franchises and allow them to be made instruments tecum issued in an action against instrumentalities Taxation [37 of oppression and extortion. It is on the corporation to recover a stat- Cyc 881].

such considerations as these that utory penalty. American Lith. Co. v. 24. American Tobacco Co. V.

fair reviews of literary works, alWerckmeister, 221 U. S. 603, 31 SCt Werckmeister, 207 U. S. 284, 28 sct

though containing lengthy extracts 676, 55 L. ed. 873. 72, 52 L. ed. 208, 12 AnnCas 595;

from them, are not infringements of 20. Woollen v. Banker, 30 F. Cas. Hanfstaengl v. Empire Palace, (1894)

the copyrights of them." HanfsNo. 18.030, 2 Flipp. 33, 35 (patent 3 Ch. 109; Dicks v. Brooks, 15 Ch. D.

taengl v. Empire Palace, (1894) 3 Ch. case); Peo. v. Roberts, 159 N. Y. 70, 22; Gambart v. Ball, 14 C. B. N. S.

109, 128 (per Lindley, L. ).). 53 NE 685, 45 LRA 126 [rev 35 App. 306, 108 ECL 306, 143 Reprint 463.

[a] Author rather than publisher. Div. 624, 54 NYS 1112).

-In Bobbs-Merrill Co. v. Straus, 147

Rules of statutory construction see "That the Constitution the

Fed. 15, 77 CCA 607, 15 LRANS 766 Statutes [36 Cyc 1102). United States has conferred upon the

(aft 210 U. S. 339, 28 SCt 722, 52 L.

25. Bobbs-Merrill Co. Congress the power "To promote the

V. Straus, ed. 1086), it was said in effect that

210 U. S. 339, 347, 28 SCt 722, 52 L. copyrights are granted for the benefit progress of science and the useful

ed. 1086; American Tobacco Co. v. arts, by securing for limited time, to

of the author rather than the pubWerckmeister, 207 U. S. 284, 28 SCt | lisher. authors and inventors the exclusive 72, 52 L. ed. 208, 12 AnnCas 595.

But in copyright matters it

would seem that what benefits one right to their respective writings and

"Whil discoveries,' by Sec. 8, Art. I., is no

the nature of the property necessarily benefits the other. Limimore certain than that such power given the inventor or author as the

and the protection intended to be tations the publisher decrease has been exercised by the enactment

the market value of the author's reward of genius or intellect in the product. of patent laws, and that no State can production of his book or work of limit, control, or even exercise the

[b] Artist's copyright."As was power. Congress has not only regu

art is to be considered in construing very well pointed out in the case of

the act of Congress, it is evident Gambart v. Ball, 14_C. B. N. S. 306, lated the manner in which a patent that to secure the author the right | 108 ECL 306, 143 Reprint 463, and may be obtained, but it has pre

to multiply copies of his work may in Dicks v. Brooks, 15 Ch. D. 22, 36, scribed the manner in which such

be said to have been the main pur- the object of these Acts is both to right may be sold and conveyed, and pose

of the copyright statutes."

protect the reputation of the artist has imposed the penalties for the in- Bobbs-Merrill Co. v. Straus, supra. from being lessened in the eyes of fringement thereof. The national

"While it is true that the property the world, and also to secure him government has, therefore, made a

in copyright in this country is the the commercial value of his proppatent right, property. The patentee creation of statute, the nature and erty-to encourage the arts by sehas paid the Government for the

character of the property grows out curing to the artist a monopoly in monopoly, and it is bound to protect af the recognition of the separate the sale of an object of attraction.' him and his assignee in the use and ownership of the right of copying Hanfstaengl v. Empire Palace, [1894) enjoyment of it. Any interference from that which inheres in the mere 3 Ch. 109, 133 (per Davy, L. J.). whatever by any State, that will im- physical control of the thing itself, 26. Routledge v. Low, L. R. 3 H. pair the right to make, use, or vend and the statute must be read in the L. 100; Griffin V. Kingston, etc., R. any patented article, or the right to light of the intention of Congress to Co., 17 Ont. 660, 665. assign the patent or any part of it, protect this intangible right as a re- 27. White-Smith Music Pub. Co. v. is forbidden by the highest organic ward of the inventive genius that Apollo Co.. 209 U. S. 1, 28 SCt 319, law. The statute in question is such has produced the work." American 52 L. ed. 655, 14 AnnCas 628. an interference, and is unconstitu- Tobacco Co. Werckmeister, 207 28. White-Smith Music Pub. Co. v. tional." Woollen v. Banker, supra.

U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 Goff, 187 Fed. 247, 109 CCA 187; 21.

Evans v. Robinson, 8 F. Cas. | AnnCas 595 [quot Bong v. Alfred S. Oliver Ditson Co. v. Littleton, 61 No. 4,571; Helm v. Huntington First Campbell Art Co., 214 U. s. 236.29 Fed. 905, 15 CCA 61 (aff 62 Fed. 597). Nat. Bank, 43 Ind. 167, 13 AMR 395 SCt 628, 53 L. ed. 979, 16 AnnCas 29. Oliver Ditson Co. v. Littleton, (holding that, as the federal govern- 1126).

67 Fed. 905, 15 CCA 61 (aff 62 Fed. ment has continuously, from the "The object of the Copyright Act 597); 28 Op. Atty.-Gen. (Wickersham) adoption of the constitution down was to prevent any one publishing a

150. to the present time, legislated copy of the particular form of ex- 30. 28 Op. Atty.-Gen. (Wickerthe subject of patents, and as, pression in which an author con- sham) 176: 28 Op. Atty.-Gen. (Wickfrom the nature and subject of veyed ideas or information to the ersham) 150, the

power, it cannot conveniently world." Hollinrake Truswell, 31. 29 Op. Atty.-Gen. (Wickerbe exercised by the state, it must (1894] 3 Ch. 420, 424.

sham) 222. necessarily be exercised by the "Copyright, like patent right, is a [a] Rule applied.—"The act of national government exclusively monopoly restraining the public from March 4, 1909, is entitled 'An act to "We are of

the opinion that the legislature of Indiana possessed no

doing that which. apart from the amend and consolidate the acts repower to pass the statute under con

monopoly, it would be perfectly law-specting copyright,' and the entire

ful for them to do. sideration, and it must therefore be

The monopoly subject with reference to what works is itself right


and just, and held unconstitutional

may be copyrighted, and the manuand [a] Congress has

void"). granted for the purpose of prevent- facturing provisions relating to the

the exclusive power to grant patents, and to renew

ing persons from unfairly availing type and plates from which they themselves of the work of others, "shall be printed, and what importa










mitted, which continued to be governed by the some sections, with a view to the immediate purformer law.32 But the act of June 18, 1874, provid- pose of them, may receive a more liberal or a more ing for copyright of prints and labels designed to strict construction than others.3 Thus the penal be used for articles of manufacture, by registra- sections of the statute, if ambiguous, will be contion in the Patent Office, was not included in, and strued more strongly in favor of defendant than in is not repealed by, the act of 1909.33

the case of the remedial sections, but still in such [V 88] 2. Strict or Liberal Construction. While a way as to effect substantial justice and carry out it has been said that copyright statutes are in the obvious intention of congress.38 As giving derogation of the common law and, therefore, are to effect to what may be considered a purpose to probe strictly construed,34 it is now settled that the tect the inherent right of an author in his own work, statute must be reasonably construed with a view the provisions of the copyright acts should receive to effecting the purposes intended by congress.35 a liberal construction.39 The statutes cannot be exThe statute is not to be unduly extended by judicial pected to do more than to secure the author and construction SO as to include privileges not in- the public as far as is reasonably practicable.* tended to be conferred, nor so narrowly construed as [89] 3. Extraterritorial Operation. The copyto deprive those entitled to its benefits of the right laws of a country have no extraterritorial rights intended to be granted.36

While in any case operation," except such as may be given them by the statute must receive a reasonable construction, virtue of treaties or conventions providing for tions thereof are excluded, are fully | 210 U. S. 339, 28 SCt 722, 52 L. ed. | 148 Fed. 642; Harper v. Donohue. 144 covered by the provisions of this 1086.

Fed. 491 [aff 146 Fed. 1023 mem, 76 act; and consequently, all prior laws [a] Rule of reasonable construc- | CCA 678 mem]; Werckmeister V. relating thereto are, by implication tion. -"The copyright statutes ought American Lith. Co., 142 Fed. 827: repealed. (Pana v. Bowler, 107 U. S. to be reasonably construed with a Myers v. Callaghan. 5 Fed 726, 10 529, 2 SCE 704, 27 L. ed. 424; U. S. v. view to effecting the purposes in- Biss. 139, 20 Fed. 441 [aff 128 U. S. Henderson, 11 Wall. (U. S.) 652, 20 tended by Congress. They ought not 617. 9 SCt 177, 32 L. ed. 547). L. ed. 235; Norris v. Crocker, 13 How. to be unduly extended by judicial “The provisions of the copyright (U. S.) 429, 14 L. ed. 210).” 28 Op. construction to include privileges not law are to be liberally, construed to Atty.-Gen. (Wickersham) 150, 151. intended to be conferred, nor SO insure to the author the product of

32. Whitmark v. Standard Music narrowly construed to deprive his brain." Jenkins, J., in Holmes v. Roll Co., 221 Fed. 376, 137 CCA 184. those entitled to their benefit of the Donohue, 77 Fed.


180 [quot [a] Rule of strict construction.. rights Congress intended to grant." Harper v. Donohue, 144 Fed. 491, 496 "We must construe section 63 Bobbs-Merrill Co. v. Straus, 210 U. (aff 146 Fed. 1023 mem, 76 CCA 678 limiting the remedy in instances S. 339, 346, 28 SCt 722, 52 L. ed. mem)). where the cause of action for in- | 1086.

"The right given to authors and fringement arose prior to July 1, 37. Bolles v. Outing Co., 175 U. S. publishers should be so guarded and 1909, where causes

then | 262, 20 Sct 94, 44 L. ed. 156; Edison protected as to give them the pracpending, or to instances where there V. Lubin, 119 Fed. 993 (rev on other tical benefits the law meant them to has been a violation of the statutes grounds 122 Fed. 240, 58 CCA 604 receive." Ginn v. Apollo Pub. Co., which existed prior to July 1, 1909, (app dism 195 U. S. 625, 25 SCt 790,215 Fed. 772, 779. but which might not be prosecuted 49 L. ed. 349)].

"This act no doubt should be liberuntil after that date." Whitmark v.


Bolles v. Outing Co., 175 U. S. ally construed to give effect to its Standard Music Roll Co., 221 Fed. 262, 20 SCt 94, 44 L. ed. 156 (holding tenor and true intent." National 376, 379, 137 CCA 184.

that Rev. St. § 4965, imposing a pen-Cloak, etc., Co. v. Kaufman, 189 Fed. 33. See infra § 141

alty of one dollar for every infring- | 215, 217. 34. White-Smith Music Pub. Co. v. ing sheet found in defendant's pos- "The Supreme Court has lately Apollo Co., 147 Fed. 226, 77 CCA 368 session, is a penal statute within shown a tendency to widen, rather (aff 139 Fed. 427, and aff 209 U. S. this rule); Caliga v. Inter-Ocean than to narrow,

the scope

of the i, 28 SCt 319, 52 L. ed. 655, 14 Ann Newspaper Co., 157 Fed. 186, 84 CCA copyright act (Act July 8, 1870, c. Cas 628]; Bobbs-Merrill Co. v. Straus, 634 (aff 215 U. S. 182, 30 sct 38, 54 230, 16 Stat. 212 [U. š. Comp. St. 147 Fed. 15, 77 CCA 607, 15 LRANS L. ed. 150); Walker v. Globe News- | 1901, p. 3405]). Bleistein v. Donald766 (aff 210 U. S. 339, 28 SCt 722, 52 paper Co., 130_Fed. 593 rev on other son Lith. Co., 188 U. S. 239. 23 Ct L. ed. 1086).

grounds 140 Fed. 305, 72 CCA 77, 2 298, 47 L. ed. 460." Empire City [a] Rule of strict construction.-LRANS 913, 5 AnnCas 274 (rev on Amusement Co. v. Wilton, 134 Fed. “We are of the opinion that the other grounds 210 U. S. 356, 28 SCt 132, 133. rights sought to be protected by 726, 52 L. ed. 1096)]; Edison v. Lu- 40. United Dictionary Co. v. G. & these suits belong to the same class bin, 119 Fed. 993 [rev other C. Merriam Co., 208 U. S. 260, 266, 28 as those covered by the specific pro- grounds 122 Fed. 240. 58 CCA 604 SCt 290, 52 L. ed. 478. visions of the copyright statutes, (app dism 195 U. S. 625, 25 SCt 790. "The statutes cannot be expected and that the reasons which led to 49 L. ed. 349)]; Bennett v. Carr, 96 to do more than to secure the author the passage of said statutes apply Fed. 213, 37_CCA 453; Tuck v. Pries- and the public so far as is reasonably with great force to the protection of ter, 19 Q. B. D. 629. See Dalyv. practicable. The obvious plan is not rights of copyright against such an Brady, 69 Fed. 285 (holding that Rev. to be distorted by the chance that appropriation of the fruits of an St. § 4966, making one presenting a ingenuity may find some way to slip author's conception, as results from copyrighted dramatic composition through the law uncaught. United the acts of defendant. But in view without the consent of the proprietor Dictionary Co. v. G. & C. Merriam of the fact that the law of copyright thereof liable in damages, is a penal Co., supra. is a creature of statute, and is not statute). See generally Statutes [36 41. Ferris v. Frohman, 223 U. S. declaratory of the common law, and Cyc 1183).

424, 32 SCt 263, 56 L. ed. 492; United that it confers distinct and limited "If the language be plain, it will Dictionary Co. v. G. & C. Merriam rights, which did not exist at the be construed as it reads, and the Co., 208 Ú. S. 260. 28 SCt 290, 52 L. common law, we are constrained to words of the statute given their full ed. 478; McLoughlin v. Raphael Tuck hold that it must be strictly con- meaning; if ambiguous, the court will Co., 191 U, S. 267, 24 SSt 105, 48 L. strued, and that 'we are not at lean more strongly in favor of the ed. 178 [aff 115 Fed. 85. 53 CCA 508); liberty to extend its provisions, defendant than it would if the stat- Boosey v. Purday, 4 Exch. 145, 154 either by resort to equitable con- ute were remedial. In both cases it Reprint 1159; Jefferys v. Boosey, 4 siderations or to a strained inter- will endeavor to effect substantial H. L. Cas. 815, 10 Reprint 681; Chappretation of the terms of the stat. justice." Bolles v. Outing Co., 175 pell v. Purday, 14 M. & W. 303, 153 ute." White-Smith Music Pub. Co. v. U. S. 262, 265, 20 SCt 94, 44 L. ed. Reprint 491. Apollo Co., 147 Fed. 226, 227, 77 CCA 156.

"Such rights of authors 368 (aff 139 Fed 427, and aff 209 U. [a] Avoiding, or minimizing pen- saved by statute are not recognized S. 1, 28 SCt 319, 52 L. ed. 655, 14 alty.-If there is a reasonable inter- extraterritorially. They can only be AnnCas 628] (refusing protection pretation which will avoid the pen- enforced in the sovereignty of their against perforated music rolls). alty in any particular case, it should origin.” Mikado, etc.. Case, 25 Fed.

35, Bobbs-Merrill Co. V. Straus, be adopted. If there are two reason- 183, 184, 23 Blatchf. 347. 210 U. S. 339, 28 SCt 722. 52 L. ed. able constructions, the more lenient


Books purchased a broad.1086; Aeolian Co. v. Royal Music one should be given. Such is the "The right, however, of the defendRoll Co., 196 Fed. 926; Dam v. Kirk settled rule for the construction of ant to use in this country the books la Shelle Co., 175 Fed. 902. 99 CCA penal sections, Hildesheimer which he bought abroad denends on 392. 41 LRANS 1002, 20 Anncas 1173 Faulkner. (1901) 2 Ch. 552, 1 BRC | the law of this country. and not on [aff 166 Fed. 589): White-Smith 755 [cit Tuck v. Priester, 19 Q. B. D. the law of the place of sale. The Music Pub. Co. v. Apollo Co., 139 6291.

copyright in this country confers Fed. 427 (aff 147 Fed. 226. 77' CCA 39. National Cloak, etc., Co. V. upon the plaintiff rights here which 368 (aff 209 U. S. 1, 28 SCt 319, 52 Kaufman, 189 Fert. 215; Bracken v. no contract of sale abroad by other L. ed. 655, 14 AnnCas 628)].

Posenthal, 151 Fed. 136: Ford persons can deprive him of." Pitts 36. Bobbs-Merrill Co. v. Straus, Charles E. Blaney Amusement Co.. v. George, (18961 2 Ch. 866, 876.




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