Bulletin

NOTE 5-Continued.

act is to prescribe certain duties to be levied upon certain imported articles and to 1 state what articles are exempt from such duties. Unless expressly so provided, it has little or nothing to do with authorizing the importation of foreign goods. Generally, and unless expressly forbidden, the importation of goods from one friendly nation to another is merely a matter of common right and comity, and does not 5 require any special authorization by tariff laws or otherwise.

Indeed, the tariff act of 1897 does not profess to confer any right of importation. As is usual in such statutes, its first section simply provides that "there shall be levied, collected, and paid upon all articles imported," etc., certain specified duties, and the free list begins with the statement that, "unless otherwise specially pro- 10 vided for in this act, the following articles, when imported, shall be exempt from duty." Doubtless, if it were required, these would amount to an implied permission to import upon the terms stated; but this is not at all the object or purpose, nor is it at all necessary. Nor does the right to import depend at all upon these provisions, but would exist equally without them, and by the comity of friendly nations. Paragraph 503 of the tariff act of 1897 therefore simply provides when and under what circumstances the articles there specified, including music, are exempt from duty on importation, and does not contradict, much less repeal, modify, or abrogate any part of the copyright act.

Your question is therefore answered in the negative.

Respectfully,

The SECRETARY OF THE TREASURY.

P. C. KNOX.

In "Official Opinions of the Attorneys-General of the United States. Edited by John L. Lott and James A. Finch." Vol. 23, 8°. Washington, Government Printing Office, 1902, pp. 445-450.

Also in "Treasury Decisions. Printing Office, 1902, pp. 697–700.

NOTE 6. (See page 61).

1901." Vol. 4, 8vo. Washington, Government

TREASURY DEPARTMENT DECISIONS AND OPINIONS OF THE ATTORNEYS-GENERAL CONCERNING IMPORTATION UNDER THE PROVISIONS OF THE COPYRIGHT LAWS.

(a) CUSTOMS REGULATIONS AS TO IMPORTATION OF COPYRIGHT ARTICLES, 1899. Copyrighted books and other articles.

ART. 613. Copyrighted books and articles, the importation of which is prohibited by section 4956, Revised Statutes, as amended by section 3 of the act of March 3, 1891, shall not be admitted to entry. Such books and articles, if imported with the 35 previous consent of the proprietor of the copyright, shall be seized by the collector of customs, who will take the proper steps for the forfeiture of the goods to the United States under section 3082, Revised Statutes.

ART. 614. Copyrighted books and articles imported contrary to said prohibition and without the previous consent of the proprietor of the copyright, being primarily 40 subject to forfeiture to the proprietor of the copyright, shall be detained by the collector, who shall forthwith notify such proprietor in order to ascertain whether or not he shall institute proceedings for the enforcement of his right to the forfeiture. ART. 615. If the proprietor institute such proceedings and obtain a decree of forfeiture, the goods shall be delivered to him upon payment of the expenses incurred 45 in the detention and storage, and the duties accrued thereon. If such proprietor shall fail to institute such proceedings within sixty days from date of notice, or shall declare in writing that he abandons his right to the forfeiture, then the collector shall proceed as in the case of articles imported with the previous consent of such proprietor.

NOTE 6-Continued.

1 ART. 616. Copyrighted articles, the importation of which is not prohibited, but which, by virtue of section 4965, Revised Statutes, as amended by section 8 of said act, are forfeited to the proprieter of the copyright when imported without his previous consent, and are moreover subject to the forfeiture of $1 or $10 per copy, as 5 the case may be, one-half thereof to the said proprietor and the other half to the use of the United States, shall be taken possession of by the collector, who shall take the necessary steps for securing to the United States half of the sum so forfeited, and shall keep the goods in his possession until a decree of forfeiture is obtained, and the half of the sum so forfeited, as well as the duties and charges accrued, are paid; 10 whereupon he shall deliver the goods to the proprietor of the copyright. Duties collected on prohibited copyrighted articles can not be refunded.

In case of failure to obtain a decree of forfeiture, the goods shall be admitted to entry.

Joint regulations of the Treasury and Post-Office Departments.

ART. 617. For the purpose of carrying into effect the provision in section 4965, Revised Statutes, as amended by the copyright acts of March 3, 1891, and March 2, 1895, which prohibits the importation of musical compositions duly copyrighted thereunder, and under the authority conferred by section 4958, Revised Statutes, as amended, which provides that "the Secretary [of the Treasury] and Postmaster20 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," the following regulations are promulgated for the government of the officers of the customs and of the postal service, viz:

ART. 618. Inasmuch as under paragraph 403, act of July 24, 1897, music in books or sheets, except in certain specified cases, is liable to customs duty, postmasters are instructed to carefully examine the mails from foreign countries and to forward all musical publications found therein to the nearest customs officer. Customs officers are instructed to keep a close watch for matter imported through the usual channels 30 in violation of the copyright act.

ART. 619. Upon the receipt of such matter from postmasters or in the usual channels, customs officers will proceed to collect, in the regular manner, the duty on all such matter as is properly admissible, and shall hold all music in books or sheets imported in violation of any copyright of the United States, and notify by mail the 35 owner of the copyright and the owner, importer, or consignee of the prohibited articles, or the person to whom addressed.

ART. 620. If within three months from the mailing of the notice the owner of the copyright shall not institute proceedings for forfeiture of such articles under the provisions of section 4965, Revised Statutes, as amended by the act of March 2, 1895 40 (28 Stat., 965), or the owner or importer of the prohibited articles, or the person to whom addressed, shall not appear and show cause to the contrary, the customs officer is directed to burn or otherwise destroy the prohibited articles.

In "Customs Regulations of the United States Prescribed for the Instruction and Guidance of Officers of Customs. United States Treasury Department." 8vo. Washington: Government Printing Office, 1900, pages 210, 211, 212. (b) TREASURY DEPARTMENT DECISIONS AND OPINIONS OF THE ATTORNEYS-GENERAL. Copyrighted books-"Ben Hur."

(15664.)

TREASURY DEPARTMENT, February 28, 1895. GENTLEMEN: The Department is in receipt of your letter of the 23d instant, further 50 in regard to the importation of Canadian copies of the book entitled "Ben Hur," which you state was copyrighted on October 12, 1880.

NOTE 6-Continued.

The case cited by you and stated in a newspaper clipping attached to your letter 1 involves the right of a passenger on a railroad train to bring into the United States a copy of said book purchased for his own use, and you ask that instructions may be issued to collectors to refuse admission to such books.

By reference to section 3 of the copyright act of March 3, 1891, you will observe 5 that two copies of copyrighted books, etc., purchased by persons for their own use and not for sale, and imported subject to the duty thereon, are exempted from prohibition of importation.

The copies referred to by you are sold at 25 cents each, and the duty thereon at the rate of 25 per cent ad valorem would be 64 cents, which duty, under the provisions 10 of article 1036, Customs Regulations of 1892, would be remitted by the collector. The Department is therefore unable to grant your request.

Respectfully, yours,

CHARLES S. HAMLIN, Acting Secretary.

Franklin Square, New York.

Messrs. HARPER & BROS.,

(In “Decisions under the tariff and navigation laws, etc., February, 1895.” 8vo. Washington. Treas. Dept. Doc. No. 1759. p. 125.) In "Synopsis of the Decisions of the Treasury Department. 1895." 8vo. Washington, Government Printing Office, 1896, p. 125.

Section 3 of the copyright act of March 3, 1891 (26 Stat., 1106), prohibiting the importation into the United States of foreign editions of any bock copyrighted in this country, is applicable to books copyrighted prior to the passage of the act; and the exceptions in the case of persons purchasing for use and not for 25 sale, who import, subject to the duty thereon, not more than two copies of such book at any one time, is not limited in its application to the "authorized editions" of such book.

SIR: I have your letter of the 15th instant, inclosing a letter from Messrs. Harper & Bros., of February 15, 1895, with a copy of your reply thereto, dated February 28, 1895, and a further letter from said firm, dated March 2, 1895, and the opinion of the Solicitor of the Treasury as to the application of section 7 of the copyright act of March 3, 1891, to books copyrighted before said act went into effect. 35

You ask my opinion "as to whether section 3 of said act is applicable to books copyrighted prior to the passage of said act; and if so, whether the exception therein of two copies of copyrighted books is limited to what are known as 'authorized editions,' as claimed by Messrs. Harper & Bros."

The act of March 3, 1891 (26 Stat., 1106), is entitled "An act to amend title 60, 40 chapter 3, of the Revised Statutes of the United States, relating to copyrights."

It will be observed as to this act, that although entitled "An act to amend title 60, chapter 3," yet, in fact, it amends only certain specific cnumerated sections of that chapter.

It will be observed, further, that it does not repeal the then exising statutes on the 45 subject, but that the amendments consist solely in the addition of new provisions. The rule of construction, as stated in Sutherland on Statutory Construction, section 133, is as follows:

The portions of the amended sections, which are merely copied without changes, are not to be considered as repealed and again enacted, but to have been the law all 50

NOTE 6-Continued.

1 along; and the new parts, or the changed portions, are not to be taken to have been the law at any time prior to the passage of the amended act. The change takes effect, prospectively, according to the general rule.

And in Endlich on the Interpretation of Statutes, section 195:

An amendment of a statute may or may not operate as an implied repeal of the original law. If it does not change the same, but merely adds something to it, it is not, in general, a repeal thereof.

The act of March 3, 1891, was intended, as is well known, to protect domestic authors against foreign infringements of their copyrights. And, as appears by section 10 13 of that act, it invited reciprocity in this matter from foreign Governments.

Section 2 is an amendment of section 4956, Revised Statutes. It does not operate to repeal any provision of section 4956, but amends it only "by adding something new." It provides for the deposit in the mail or the delivery at the office of the Librarian of Congress of a printed copy of the title of the work produced, and also 15 two copies of such work; with the proviso, however, that "during the existence of such copyright the importation into the United States of any book * * * copyrighted, or any edition or editions thereof, * shall be and is hereby prohibited."

* *

Does this apply only to such books as shall have been copyrighted since March 3, 20 1891? I think not. It secures to the owner of the copyright of every book which shall have been copyrighted in accordance with the requirements of this statute, whether before or after its passage, protection against the sale in this country of foreign publications of his book by prohibiting the importation of such foreign publications. The act is prospective only as to this new security which it affords to the 25 owner of the copyright, and is not prospective as to the books to which that security applies.

He can not claim indemnity for losses sustained by reason of such importation and sale prior to the passage of the act; but while his copyright continues, whether it was acquired before or since March 3, 1891, the benefit of the act extends to him. 30

Neither the letter, the spirit, nor the reason of the act confines the application of the protection it affords to those books that have been copyrighted since its passage. Tariff laws are prospective. But an amended statute which places on the free list certain articles theretofore subject to duty is not limited in its application to those articles of that class which have been produced or manufactured since the passage of 35 the amendatory act.

To this proviso there is an exception as follows:

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 work at any one time. Does this refer to two copies of an "authorized edition" of such book?

The statute certainly does not say so, and the proviso to which this exception is made provides that "during the existence of such copyright the importation into the United States of any book so copyrighted is hereby prohibited."

I am unable to see on what ground it can be claimed that the exception refers to those books only the foreign publication of which has been authorized by the owner 45 of the copyright.

I am therefore of the opinion

1. That section 3 of the act of March 3, 1891, applies as well to books which have been copyrighted before as to those which have been copyrighted since the passage of the act.

2. That the exceptions 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

NOTE 6-Continued.

any one time, is not limited in its application to the "authorized editions" of such 1 book.

I herewith return the inclosures accompanying your letter.

Very respectfully,

Approved:

The SECRETARY OF THE TREASURY.

HOLMES CONRAD, Solicitor-General.

RICHARD OLNEY.

(In "Official Opinions of the Attorneys-General of the United States. Edited by E. C. Brandenburg." Vol. 21, 8vo. Washington, Government Printing 10 Office, 1898, pp. 159-162.)

Also in "Synopsis of the Decisions of the Treasury Department, 1895." 8vo. Washington, Government Printing Office, 1896, pp. 446-498.

(16046)

Copyrighted Books-"Ben Hur."

TREASURY DEPARTMENT, May 14, 1895. 15 GENTLEMEN: The Department is in receipt of your letter of March 2 last, further in regard to the importation of copies of the book entitled "Ben Hur," which was copyrighted for the United States on October 12, 1880.

You state that the copies are unauthorized or pirated copies, published in Canada, and that you are advised and understand that section 3 of the Copyright Act of 20 March 3, 1891, does not relate to books published in violation of the author's copyright, but that said section was made a part of the Copyright Act for the purpose of preventing the importation of books published with the consent of the author in foreign countries, except that books so published might be imported for use and not for sale, to the extent of not more than two copies, as in that section provided, and 25 that the importation of a book published without the consent of the author in a foreign country is an infringement of the copyright, and subjects such books to forfeiture under section 7 of said act.

The questions involved have been submitted to the Attorney-General, and the Solicitor-General, under date of the 19th ultimo, advises the Department that the 30 provision in section 3 of the act of March 3, 1891, which prohibits the importation of any book copyrighted or any edition or editions thereof is equally applicable to books copyrighted before or after the passage of said act; that the proviso in said section which allows the importation of two copies of copyrighted books by persons purchasing for use and not for sale is also applicable to such books, and that the proviso is 35 not limited in its application to the "authorized editions" of such books.

The Department, in view of this opinion, sees no reason for revoking its decision of February 28 last.

Respectfully yours,

Messrs. HARPER & BROS.,

Franklin Square, New York.

C. S. HAMLIN,
Acting Secretary. 40

[For copy of opinion above referred to see above pp. 121-123.]

In "Synopsis of the Decisions of the Treasury Department and Board of U. S General Appraisers on the Construction of the Tariff, Navigation, and other 45 laws, 1895." 8vo. Washington, Government Printing Office, 1896, pp. 495–498.

UNAUTHORIZED EDITIONS OF BOOKS COPYRIGHTED IN THE UNITED STATES CAN NOT BE IMPORTED FOR SALE.

(16739.)

TREASURY DEPARTMENT, February 3, 1896. SIR: The Department duly received your letter of the 15th ultimo, inclosing a 50 statement from the American Copyright League and the American Publishers'

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