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Securing Copyright

( Originally Published 1883 )



0NE of the questions frequently asked by an author in connection with his first work is : " What steps must I take to secure my copyright ? " For the purpose of supplying this information, the text of the United States Copyright Laws, as included in the Revised Statutes, is here given.

THE COPYRIGHT LAWS OF THE UNITED STATES.

(These form a part of the Act relating to Patents, and the numbering of the sections is consecutive to that of the sections relating to Patents.)

SEC. 4948. All records and other things relating to copyrights and required by law to be preserved, shall be under the control of the librarian of Congress, and kept and preserved in the library of Congress ; and the librarian of Congress shall have the immediate care and supervision thereof, and, under the supervision of the joint committee of Congress on the library, shall perform all acts and duties required by law touching copy-rights.

SEC. 4949. The seal provided for the office of the librarian of Congress shall be the seal thereof, and by it all records and papers issued from the office and to be used in evidence shall be authenticated.

SEC. 4950. The librarian of Congress shall give a bond, with sureties, to the treasurer of the United States, in the sum of five thousand dollars, with the condition that ,he will render to the proper officers of the treasury a true account of all moneys received by virtue of his office.

SEC. 4951. The librarian of Congress shall make an annual report to Congress of the number and description of copyright publications for which entries have been made during the year.

SEC. 4952. Any citizen of the United States or resident therein, 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, statuary, or of models or de-signs 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 the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or represented by others. And authors may reserve the right to dramatize or to translate their own works.

SEC. 4952A. (Act of June 18, 1874, ch. 301, & 3, 18 Stat. 79.) That in the construction of this act the words " engraving, " cut," and " print" shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the patent office. And the commissioner of patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print or label not a trademark, six dollars, which shall cover the expense of furnishing a copy of the record under the seal of the commissioner of patents, to the party entering the same.

SEC. 4953. Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed.

SEC. 4954. The author, inventor, or designer, if he be still living and a citizen of the United States or resident therein, 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 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. 4955. Copyrights shall be assignable in law, by any instrument of writing, and such assignment shall be recorded in the office of the librarian of Congress within sixty days after its execution; in default of which it shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice.

SEC. 4956. No person shall be entitled to a copyright unless he shall, before publication, deliver 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 printed copy of the title of the book or other article, or a description of the painting, drawing, chromo, 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, within ten days from the publication thereof, deliver at the office of the librarian of Congress or deposit in the mail addressed to the librarian of Congress, at Washington, District of Columbia, two copies of such copyright book or other article, or in case of a painting, drawing, statue, statuary, model or design for a work of the fine arts, a photograph of the same.

SEC. 4957. The librarian of Congress shall record the name of such copyright book or other article, forthwith, in a book to be kept for that purpose, in the words following: Library of Congress, to wit : be it remembered that on the day of ______. A. B., of _____ , hath deposited in this office the title of a book [map, chart or otherwise, as the case may be, or description of the article], the title or description of which is in the following words, to wit : [here insert the title or description,] the right whereof he claims as author [originator or proprietor, as the case may be], in conformity with the laws of the United States respecting copyrights. C. D., librarian of Congress." And he shall give a copy of the title or description, under the seal of the librarian of Congress, to the proprietor, whenever he shall require it.

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 any instrument of writing for the assignment of a copyright, fifteen cents for every one hundred words.

Fourth. For every copy of an assignment, ten cents for everyone hundred words.

All fees so received shall be paid into the treasury of the United States.

SEC. 4958A. (Act of June 18, 1874, ch. 301, § 2, 18 Stat. 79.) That for recording and certifying any instrument of writing for the assignment of a copyright, the librarian of Congress shall receive from the persons to whom the service is rendered, one dollar; and for every copy of an assignment, one dollar: said fee to cover, in either case, a certificate of the record, under seal of the librarian of Congress.; and all fees so received shall be paid into the treasury of the United States.

SEC. 4959. The proprietor of every copyright book or other article shall deliver at the office of the librarian of Congress, or deposit in the mail addressed to the librarian of Congress at Washington, District of Columbia, within ten days after its publication, two complete printed copies thereof, of the best edition issued, or description or photograph of such article as hereinbefore required, and a copy of every subsequent edition wherein any substantial changes shall be made.

SEC. 4960. For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies, or description or photograph, required by sections four thousand nine hundred and fifty-six, and four thousand nine hundred and fifty-nine, the proprietor of the copy-right shall be liable to a penalty of twenty-five dollars, to be recovered by the librarian of Congress, in the name of the United States, in an action in the nature of an action of debt, in any district court of the United States, within the jurisdiction of which the delinquent may reside or be found.

SEC. 4961. The postmaster to whom such copyright book, title, or other article is delivered, shall, if requested, give a receipt therefor ; and when so delivered he shall mail it to its destination.

SEC. 4962. (Act of June 18, 1874, ch. 301, & 1, 18 Stat. 78.) That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design, intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz.: " Entered according to act of Congress, in the year _____, by A. B., in the office of the librarian of Congress, at Washington" ; or, at his option, the word " copyright," together with the year the copyright was entered, and the name of the party by whom it was taken out ; thus : "Copyright, 18-, by A. B."

SEC. 4963. Every person who shall insert or impress such notice, or words of the saine purport, in or upon any book, map, chart, musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shall 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. 4964. Every person who, after the recording of the title of any book as provided by this chapter, shall 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, or import, or, knowing the same to be so printed, published, or imported, shall sell or expose for 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. 4965. If any person, after the recording of the title of any map, chart, 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 chapter, shall, 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, engrave, etch, work, copy, print, publish, 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, or imported, shall sell or expose for 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 a 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 proprietor and the other half to the use of the United States.

SEC. 4966. Any person publicly performing or representing any dramatic composition for which a copyright has been obtained, without the consent of the proprietor thereof; or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just.

SEC. 4967. Every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resident therein, shall be liable to the author or proprietor for all damages occasioned by such injury.

SEC. 4968. No action shall be maintained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen.

SEC. 4969. In all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence.

SEC. 4970. The circuit courts, and district courts having the jurisdiction of circuit courts, shall have power, upon bill in equity, filed by any party aggrieved, to grant injunctions to pre-vent the violation of any right secured by the laws respecting copyrights, according to the course and principles of courts of equity, on such terms as the court may deem reasonable.

SEC. 4971. Nothing in this chapter shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein.

It will be seen that the essential points to be considered are :___

First. The placing with the librarian of Congress, before the publication of the volume, one copy of the printed title-page, and within ten days of such publication, two copies of the work. The title-page should be accompanied by the amount of the fee required, one dollar, in return for which the author receives his certificate, showing that the work has been entered for copyright. This certificate and the receipt of the librarian of Congress for the two copies of the book deposited, constitute the evidence upon which is based any legal defence of the copyright that may prove necessary.

In case the originals of these papers are lost, duplicates will at any time be furnished from the office of the librarian of Congress, on receipt of a fee of fifty cents.

Second. The copyright is granted for the term of twenty-eight years, but the author, if living, or his widow or children, if he be dead, can, under certain regulations, secure a renewal for a futher term of fourteen years.

It is also the case that if an author chooses to revise, modify, or add to his material, he can obtain a fresh copyright for such revised material ; but this fresh copyright will not protect the unrevised material of the first edition from being reprinted at the expiration of its own term.

Third. The privilege of securing copyright is limited to authors who are either citizens or residents of the United. States, and the courts have held that the term resident can not be interpreted to cover one who makes but a temporary sojourn, such as a visit for a season, or a stay of a few weeks or months.

Fourth. The details of securing the entries and the certificates of copyright are, as a rule, attended to by the publishers, and even when the author retains the ownership of his copyright, it is quite customary for the certificate to be made out in the name of the publisher. The agreement for publication, and the annual or semi-annual statements of amounts due for copyright, make clear enough in whom the ownership is actually vested. There is also nothing to prevent the certificate being transferred to the name of the author, if such additional precaution be deemed advisable.

If an author, while considering arrangements for publication, is anxious to secure the control of a title which seems to him to be especially desirable, he can have a title-page put into type, and by forwarding this, as above, with the fee of one dollar, can secure his certificate of entry, leaving the copyright to be perfected later by the forwarding of the two copies of his book.

Fifth. The protection of copyright is extended not only to material which is in itself original, but also to any originality of method or arrangement in the combination or classification of material. Under this principle, copyrights are secured for dictionaries, in which of course the majority of the definitions must be identical with those given in similar works ; for tables of arithmetic, chronology, natural 'history, etc., etc., in which of necessity the facts are always the same. We may mention, as an example, a recent decision of the courts to the effect that a certain arrangement of the names of bones, grouped in more or less arbitrary figures designed to assist the student in memorizing, was entitled to copyright, although the same lists' of names were of course repeated in every work on anatomy.

Sixth. Any measures which may become necessary for the protection of an author's copyright against infringements are usually undertaken through the publisher, who acts as the representative of the author, but the expense of such measures has to be borne by the author whose property is being defended. * In like manner, any suit which may be instituted against a publication alleged to be an infringement, is usually brought against the publisher of the work but whether or not it may be established that the work does constitute or contain an infringement, all expenses, penalties, and outlays that may for this cause have been incurred, are chargeable to the author or editor with whom the publisher's contract has been made. Such contract contains the provision that the author or editor with whom the publisher has to do, and who claims to be the owner of the copyright of the work, shall make good to the publisher any expense incurred in defending such copyright, and shall also guarantee to the publisher that the work contains no infringement of any other copy-right and no libels of any kind. If, therefore, such infringement or libel be afterward discovered, the responsibility and the cost of making good the same must be borne by the author.

Seventh. Contracts for publication usually contain some provision concerning the division, between publisher and au author, of such profits as may accrue through the sale in foreign countries of editions of the work, or of duplicates of the stereotype-plates, or of advance sheets. It is customary to divide these receipts from sales abroad on the same basis as that which has been arranged for the division of the net proceeds of the American editions.

As a matter of fact, it is very seldom that with a first book there are any foreign sales, so that the question of the division of the profits on these need not arise.

An author may also prefer to provide in his publishing agreement that the control of the arrangements for the foreign editions of his work shall be left in his own hands. In most cases, however, his American publisher, having a knowledge of the methods of publishing in England (practically the only country in which American works are ever purchased), and of the English publishing houses; can secure a much better arrangement for an English edition than the author can, provided any arrangement at all is possible.

Eighth. The question is often asked whether an American author can secure a copyright in foreign countries, and it is not easy to give an explicit answer to it. The United States have at present (1883) no international copyright arrangements with other countries, and except in Great Britain, American works can be reprinted (in the original or in translations) without restriction. The amount of such reprinting of American books on the Continent is still inconsiderable, but it is from year to year increasing, and in some instances, such as those of the French and German editions of Irving, Cooper, Mrs. Stowe, etc., the number of volumes sold has been very large, and the amount that would have been realized by the authors, if there had been a copyright arrangement, would have been important.

In Great Britain, also, American writers can claim no copyright protection on the strength of international arrangements, for the various attempts that have been made between 1851 and 1882 to secure a copyright treaty between the United States and England have thus far resulted in nothing.

The British Government has, however, as a rule, been ready to give a more elastic interpretation to the term " resident " than that insisted upon by the American authorities, and in a number of instances a stay of a few weeks in some portion of the British dominions, such as Canada, has been sufficient to enable an American writer to secure a copyright entry in London for a work published simultaneously in England and the United States.

The validity of copyrights so obtained has, however, often been contested in the English courts, and the decisions concerning them have been so conflicting that it is at this time considered hardly advisable to place any special reliance upon British copyrights secured through temporary residence./Canada has a copyright law of its own, and under this law the American rather than the English definition of the word resident is followed, and a temporary sojourn by the author can not be made serviceable to prevent the reprinting within the Dominion 0f an American work.

The commission appointed by the British Parliament in 1876 to investigate into the working of the present law of copyright, and to make suggestions as to its improvement, have presented an elaborate report, the recommendations of which are likely to be adopted. Among these is one to the effect that all writers, without regard to citizenship or residence, can secure copyright in Great Britain by duly entering their works in the London copyright office, and by making the first publication of them in Great Britain. If simultaneous publication in Great Britain and the United States can be accepted as answering the requirements of "first publication," the passage of the British act in the form recommended by the commission will, of course, prove of great importance and material service to all American writers who succeed in obtaining a trans-Atlantic reputation and circle of readers.

Such a measure ought to be followed at an early date by the completion of a treaty, or the passage of an act of Congress, under which a similar recognition should be made in this country of the rights of British authors.

We should understand that the new British copyright law would, if enacted, apply to all portions of the British dominions, excepting such of the colonies as possessed independent legislatures, and as saw fit to pass enactments nullifying or limiting in any way the imperial act.

Meanwhile, until the British act has been passed, and in the absence of any international arrangement, American writers have to take their chance as to obtaining, through temporary residence, a defensible British copyright, or as to securing (usually through their American publishers) some honorarium payment from British publishers. Several of the leading London firms can be depended upon to make such payments, when they can be persuaded to undertake American books at all, while other houses, in good standing and doing a large and important business, will neither them-selves make payments, nor will they respect the arrangements of their neighbors who have done so so that if an American work makes any success in England, a number of competing editions, bearing reputable publishing imprints, appear almost at once, and the publisher of the single issue that is authorized, finds his margin of profit, out of which the author's payment is to come, reduced to a minimum.

Ninth. The foregoing will make clear the nature of the direct interest of American writers in the question of international copyright. The authors who have already secured' a trans-Atlantic reputation and are obtaining some payments for their European editions, would find their receipts very largely increased, while for those who are beginning their literary career it will be much easier to effect publishing arrangements in Great Britain, when their British publishers can be protected in their undertakings against the competition of unauthorized rivals. The indirect gain to American writers through the establishment of international copyright would, however, be still more important.

The lack of such copyright has rendered possible the publication and wide circulation of cheap series of reprints of English works, principally in the department of fiction, but including also works of travel and not a little popular biography and light literature.

The competition of these series, absorbing as they do so large a proportion of the book-reading and book-buying that is done, renders it very much more difficult to secure a remunerative sale for a copyright-paying American work of fiction or light literature.

As a consequence, the books of authors who have established their reputation secure much smaller sales and smaller profits than properly belong to them, while the works of new writers find an increasing difficulty in obtaining favorable consideration, or, in fact, any consideration from the publishers. American writers are practically handicapped in their literary competition with their English rivals, and they have not even the consolation of knowing that said rivals can themselves gain in this contest any material results that would offset their own loss. With the exception of the Franklin Square series, the " Libraries," as a rule, make no payments for their foreign material, while the payments made by the publishers of the " Franklin Square " are of necessity much smaller than those which were possible before the beginning of this cutthroat competition.

It may be mentioned here that, with the exception of the publishers of these Libraries, it is the uniform practice of reputable American publishers to pay British authors for their material, notwithstanding that, in the absence of an international copyright, they can secure through such payments no protection against competition and the amount of such payments is often very considerable, often equalling and sometimes exceeding the amount of the author's receipts from his English editions. Under an international copyright, however, such payments would doubtless be materially increased, especially for the younger and less known authors.

In addition to the direct and indirect business interests of American writers in this matter, it should possess for them, as members of the great guild of authors, a strong and active ethical interest. Believing, as they unquestionably do, that the work of a man's brain is his property as certainly as is the work of his hands, they can but be ready to do what is in their power to secure a full recognition of an author's property-rights throughout the civilized world. The people of the United States are the only nation, itself possessing a great and growing literature, and making a wide use of the literature of the world, which has done nothing to secure a proper protection for the rights abroad of its own writers, and to recognize the rights in its own territory of the foreign authors whose creations it utilizes and enjoys.

At the time of this writing (February 1883), a tariff bill is under consideration in Congress, which has for its. avowed purpose the protection of American industries and American producers against foreign competition.

In such a measure a clause for the more effective protection of' the literary laborer, who produces one of the highest classes of products, and one which is of the greatest importance to the community, might very properly find place. Curiously enough, however, the protectionists, who have for the past twenty years controlled the national policy, have been the most persistent and successful opponents of any measures for international copyright, which would, as we have pointed out, constitute the most effective protection and stimulant for American literature.

American authors should feel that upon them now rests. a special responsibility in the work of so educating public and legislative opinion that this grievous national stigma. may speedily be removed, that American writers may be free to sell their works throughout the world, that foreign writers may be free to receive from their American readers. a just return for benefits conferred, and that American readers may be free to buy what has been paid for, and may not be free to buy what has been stolen.

It appears, however, that the possibility of international copyright has brought to the minds of the protectionists two apprehensions : first, that it would entail the payment to certain foreign producers (of literature), of American earnings that ought to be kept at home ; and second, that under such a measure, some American publishers, for the purpose of decreasing the cost, to themselves and the readers, of an English work, might be unpatriotic enough to arrange to purchase duplicates of English stereotype-plates, instead of permitting American compositors to do the type-setting over again.

The dislike to paying American money to foreign producers, and the desire to retain work (even though it were unnecessary work) for American compositors, have been permitted, therefore, to outweigh the principles of common justice and the rightful claims of American authors. While producers and manufacturers of nearly all classes are besieging Congress for help and bounties of various kinds, to make good their losses or to swell their profits at the expense of the community at large, the literary laborer, who asks no help from the taxpayer, and calls for no bounties from the treasury, can properly enough demand from our legislators the simple justice of protection against the ruinous competition of the books stolen from his British rivals.

The author has this further interest, which, though less direct, is still important, in the pending tariff questions. Any thing which lessens the cost of the production of books, serves to increase their circulation, and therefore to increase the amount of profits out of which copyrights are paid, while it also helps the publishers to consider favorably literary undertakings which have before seemed doubtful or unpromising.

A tariff reform in the interest of literature, therefore, bringing service alike to the writers, readers, and sellers of books, should remove all the taxes upon the materials that enter into the manufacture of books, such as paper, binders' cloth, type-metal, etc., etc. Public attention has recently been called to the absurdity of continuing the import duty on books, and it is difficult to find grounds for defending any such tax on higher education. But the removal of this duty would affect the cost of but that small portion (less than one twentieth) of the books which are imported, while the removal of the duties on the articles which directly or indirectly enter into the manufacture of American books, would render cheaper the whole mass of our literature,—American and reprinted.

We commend to American writers, who are properly the teachers of the community, the task of inducing our voters and legislators to remove these medieval tariff burdens on education, and when this has been accomplished, and, through the establishment of international copyright, American books are given a fair chance in the struggle for existence, the libraries of our people will represent a literature honestly acquired, effectively developed, and, in the best sense of the word, free.

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