Copyright Enactments of the United States, 1783-1906

NOTE 6-Continued.

1 wholly a reproduction, was issued in the year 1882, at which time the copyrigl accrued to Messrs. Harper & Bros., as appears from the notice on the back of th title-page of this or the eighth edition; that the copyright is now owned by th American Book Company, by assignment through the original proprietors, Messr 5 Harper & Bros., and that the claim is raised by the applicants that inasmuch as th copyright was obtained under the law in operation prior to the present or so-calle international copyright act of March 3, 1891, the prohibitive provision of section of the latter act does not apply.

The matter was referred to the Attorney-General for an expression of his views of 10 the subject, and I have now to transmit herewith a copy of his opinion, dated th 24th ultimo, from which you will observe that he holds that if the Harpers' copy right of 1882 on the seventh edition of the work was complete and legal, and wa duly assigned to the present owners, the importation in question is not subject to the prohibitive provision of section 3 of the act of March 3, 1891, amending section 15 4956, Revised Statutes. You will be governed accordingly.

Respectfully,

COLLECTOR OF CUSTOMS, NEW YORK, N. Y.

O. L. SPAULDING, Assistant Secretary.

IMPORTATION OF COPYRIGHTED BOOKS PRINTED ABROAD.

20 The importation of books copyrighted in the United States prior to 1891, and subsequently printed abroad, is not prohibited by section 3 of the Act of March 3, 1891. (26 Stat., 1106, 1107.)

The requirements and prohibitions of section 4956, as amended by said act, took effect in general prospectively, and do not embrace in their burdens (without regard to their benefits) a copyright obtained before March 3, 1891.

The new parts or the changed portions of an amended law, unless expressly applied, should not be held to diminish or injure vested rights under the earlier law.

A law speaks from the date of its approval or from the future date fixed to take effect, except so far as it is in terms retrospective.

30 Section 4959, as amended by the Act of March 3, 1891, permits rather than requires a revised edition of a book by foreign authors theretofore published to be copyrighted.

Opinion of April 19, 1895 (21 Opin., 159), distinguished and criticised.

DEPARTMENT OF JUSTICE, Washington, D. C., January 24, 1901.

SIR: I have the honor to acknowledge the receipt of your letter of December 15, 1900, which states that the American Book Company, of New York, has applied to you for relief in the matter of an importation of Liddell and Scott's Greek-English Lexicon, under detention at the port of New York for supposed violation of section 403 of the copyright act of March 3, 1891; that the copyright in the United States of the seventh edition of the work issued in 1882 was owned by Harper & Bros., of New York; that the copyright of the present or eighth edition is owned by the applicant under assignment from Harper & Bros.; and, calling my attention to an opinion of Solicitor-General Conrad (21 Op., 159), you request my opinion on the 45 question whether the book, having been copyrighted in this country prior to the act of 1891, is subject to the prohibitive provision of section 3 of said act. You indicate that the importation consists of the folded and unstitched sheets constituting the parts of the copyrighted book, designed to be stitched and bound in volumes in this country as the eighth edition, but not made from type set within the limits of the 50 United States.

OPINION OF THE ATTORNEY-GENERAL, JANUARY 24, 1901.

NOTE 6-Continued.

139

Responding to your request, I have to say that this work, a standard authority of 1 English scholarship, in passing through its several editions, has been revised, corrected, augmented, and improved with the cooperation especially of American-Greek scholars, and in the eighth English edition a short note to the preface, signed with the initials of Professor Liddell, and dated “Ascot, June, 1897," states that certain 5 slight corrections and additions have been inserted in the text, the rest appearing in the addenda.

The copyright law previous to the "international copyright act" of 1891 (26 Stat., 1106), gave the benefit of copyright only to citizens of the United States or residents therein (Rev. Stat., sec. 4952). The law of 1891 extended the benefit reciprocally to 10 foreign authors and artists, and also protected the printing industry in this country (Opinion of January 19, 1901). With these objects in view, section 3 of the act of 1891 (amending sec. 4956, Rev. Stat.), provided that the two copies of a copyrighted book required to be delivered or mailed to the Librarian of Congress shall be printed from type set within the limits of the United States, and contained the following 15 prohibition:

* * *

* *

During the existence of such copyright the importation into the United States of any book so copyrighted, or any edition * thereof, or any plates of the same not made from type set * within the limits of the United States, shall be, and it is hereby, prohibited.

* *

The exceptions then specified are not material to this inquiry.

Thus it appears that the essential point to be determined is whether these provisions of the international copyright act apply to the copyright and the importation in question. I think not. A law speaks from the date of its approval, or from the future date fixed for it to take effect, except so far as it is in terms retrospective. 25 The general rule is that a law is prospective in operation. (Sutherland on Statutory Construction, sec. 133, and auth. cit.; Murray v. Gibson, 15 How., 421; Harvey v. Tyler, 2 Wall., 328; Twenty per cent cases, 20 Wall., 179; Auffmordt v. Rasin, 102 U. S., 620; Chew Heong v. United States, 112 U. S., 536.) The copyright referred to in section 3 of the act of 1891 is "such copyright" on a book, etc., "so copy- 30 righted," in the enlarged scope of the privilege and for the new purposes indicated, by perfecting the right through the requisite delivery or deposit inter alia, "not later than the day of publication in this or any foreign country." There can be no copyright by virtue of the act of 1891 where the two copies are not the production of domestic typesetting. This was not so under the previous law. It was only neces- 35 sary to deliver within ten days from publication two copies of the work, without restriction as to the place of typesetting or printing (sec. 4956, Rev. Stat., previous to amendment). It is impossible to hold that a copyright obtained in 1882 should have conformed to the requirements of the present law, or, failing to do so, be held invalid and beyond protection now. Such considerations are necessarily persuasive 40 to my mind that the act of 1891 looks to the future alone and not to the past as well, so far, at all events, as concerns the requirements imposed upon a copyright applicant or owner under the section we are discussing. Otherwise it is necessary to conclude that a copyright in 1882 is now void or less extensive than originally, because it did not or does not follow rules which the law did not impose until 1891. As you per- 45 ceive, I am assuming, as conceded, that the Harpers' copyright of 1882 on the seventh edition of the work was complete and legal and was duly assigned to the present owners.

But it may be argued, nevertheless, that the right should be assimilated to the rules of the present law so far as possible, and that, granting the copyright to be 50 valid, importations under the copyright should be prohibited unless made from type set within the United States. Here the right vested in Harpers' assignees may be

NOTE 6-Continued.

1 viewed as conflicting with the protection to domestic labor extended by the later law. I think, notwithstanding, that the rules of the earlier law must cover this copyright in all respects during its life, unless otherwise provided by additional legislation, for the status of a copyright then in existence with respect to the new policy (in 5 copyright) of protection to American labor seems to have been a casus omissus in the act of 1891. We must keep clearly in view vested rights as well as the demands of a protective tariff or protective prohibitions of importation.

Again, it may be suggested that a new copyright should have been obtained under the act of 1891 for the eighth edition, issued in 1897, and not wholly a reproduction 10 of the edition of 1882. But while the eighth edition contains some corrections and additions, these appear to be comparatively trifling in extent. Therefore, although the new matter may lie outside copyright protection (assuming the unlikely case of unauthorized reproduction of such portions of the work and an action for infringement), it does not seem to me that these slight additions amount to the "substantial 15 changes" of section 4959 as amended by the act of 1891, which permits, rather than requires, a revised edition of a book by foreign authors, theretofore published, to be copyrighted. Indeed, that section implies that a new edition may not be copyrighted unless there are "substantial changes." So that the new matter seemingly does not require you to apply to the importation any other rules than those applica20 ble to the said seventh edition under the law existing in 1882, when there was no prohibition of importation of sheets printed abroad from type not set within the United States. The maxim, "The law does not care for trifles," may be suggested in this connection, and to your practical determination would appear to be committed the question when in fact such corrections and addenda carry a new edition 25 over the line of a substantial reproduction of the preceding edition.

I come now to Mr. Conrad's opinion (21 Op., 159). He held

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.

30 But this broad announcement must be understood to be restricted to the special case before Solicitor-General Conrad, which was presumably that of American owners of an American copyright, obtained before the act of 1891, on an American literary work, who were seeking, under the act of 1891, to prevent the importation of an unauthorized foreign edition, the remedy under the previous law being merely 35 by way of forfeiture of the infringing copies and damages (sec. 4964, Rev. Stat., before amendment). Mr. Conrad's language is:

The act is prospective only as to this new security (the prohibition of importation) which it affords the 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 40 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.

In other words, Mr. Conrad holds that the act of 1891 protects copyrights obtained before its passage, subject to an exception or limitation which he specifies, and does 45 not consider whether its corresponding burdens are or can be extended to such copyrights. I am not prepared to say that certain benefits may not accrue to anterior copyrights under any of the language of the act of 1891 or subsequent copyright enactments, even if the burdens residing in the present method of obtaining copyright do not attach. The language is occasionally general (see first sentence of sec. 50 4966 as amended by act June 6, 1897, 29 Stat., 481); in other places it is restricted by the phrase as provided in this act" and other such phrases (sec. 4964 as amended by the act of 1891, 26 Stat., 1109, and sec. 4965 as amended by act March 2, 1895, 28

OPINION OF THE ATTORNEY-GENERAL, JANUARY 24, 1901. 141

NOTE 6-Continued.

Stat., 965), which are similar in effect to the expressions "such copyright" and "so 1 copyrighted" noted above from the present section 4956. But it can hardly be doubted that the owner of an American copyright seeking to be relieved from the necessity of typesetting in this country, on the ground that his copyright was secured under a law which did not contain that requirement, can not be heard to 5 complain if he is remitted to his sole remedy of forfeiture and damages under that law, and is denied the right to prevent importation of competing foreign editions under the very provisions of the later law from which he escapes. This suggestion unquestionably looks to the broad conclusion that such a copyright, relieved from the burdens of the present law, also takes no benefits thereby; but that gen-10 eral question is not before us, and, while I may suggest some doubts respecting Mr. Conrad's opinion, I am not compelled to overrule it, but merely to construe it as restricted to the case then submitted and as not controlling the present inquiry. On the conclusion which I reach, that the requirements and prohibitions of section 4956 took effect in general prospectively, and do not embrace in their burdens 15 (without regard to their benefits) a copyright obtained before March 3, 1891, I may cite one of the authorities quoted in the opinion in question, namely:

* * * The new parts or the changed portions (of an amended law) 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 rospectively according to the general rule. (Sutherland 20 on Statutory Construction, sec. 133.)

Such new law, unless expressly applied, should not be held to diminish or injure rights vested under the earlier law.

I therefore answer your question by stating that the importation in question is not subject to the prohibitive provision of section 3 of the act of March 3, 1891, 25 amending section 4956, Revised Statutes.

Very respectfully,

The SECRETARY OF THE TREASURY.

JOHN W. GRIGGS,
Attorney-General.

In "Treasury Decisions." Vol. 4, 8vo. Washington, Government Printing 30 Office, 1902, pp. 139–142.

In "Official Opinions of the Attorneys-General of the United States. Vol. 23, 8vo. Washington, Government Printing Office, 1902, pp. 371–377.

Books printed in a foreign country from type set within the limits of the United 35 States, or from plates made therefrom, are not liable to the prohibitive provisions of section 4956 of the Revised Statutes, as amended.

TREASURY DEPARTMENT, October 26, 1903.

(24742.) SIR: The Department is in receipt of your letter of the 19th ultimo, wherein you state that Messrs. Edward Schuberth & Co., of New York, have submitted to you 40 the question whether books copyrighted in the United States and printed abroad from plates made from type set in the United States are prohibited entry upon importation when bearing notice that they were so printed. You ask this Depart

ment to rule on the question, that you may reply to this and similar inquiries. Section 3 of the act of March 3, 1891, amending section 4956 of the Revised Statutes, 45 provides, among other things, that no person shall be entitled to a copyright unless he shall, on or before the date of publication, deliver at the office of the Librarian of Congress at Washington, or deposit in the mail within the United States addressed to the Librarian of Congress at Washington, two copies of such copyright book "printed from type set within the limits of the United States, or from plates made 50 therefrom," and that during the existence of such copyright the importation into

NOTE 6-Continued.

1 the United States of any book so copyrighted, or any edition or editions thereof, or any plates of the same not made from type set within the limits of the United States, is prohibited.

Here, it is understood, we have books "printed (abroad) from type set within the 5 limits of the United States, or from plates made therefrom," and which bear a notice to that effect. It will be observed that the statute does not provide that books shall be printed in the United States. It merely states that the article shall be produced from type set within the limits of the United States, or from plates made therefrom. Therefore, it is the view of this Department that if the statutory requirements relat10 ing to the procurement of the copyright are complied with, and the books are printed from type set within the limits of the United States, or from plates made therefrom, the said books are not liable to the prohibitive provisions of section 4956 of the Revised Statutes, as amended.

For forfeiture in case of illegal importation, see Revised Statutes, Title 34, Collection of Duties, section 3082, as follows:

SEC. 3082. If any person shall fraudulently or knowingly import or bring into the 25 United States, or assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, 30 or be imprisoned for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury. (Rev. Stat., 1878, pp. 591-592.)

IMPORTATION UNDER THE INTERIM COPYRIGHT ACT OF JANUARY 7, 1904.

The Act of January 7, 1904, granting temporary copyright protection to exhibitors of foreign literary, artistic, or musical works at the Louisiana Purchase Exposition, also suspends operation of all statutes inconsistent with said act during the period of the temporary copyright protection therein enacted.

(25097.)

Opinion of Leslie M. Shaw, Secretary of the Treasury.

TREASURY DEPARTMENT, March 12, 1904. SIR: I have the honor to acknowledge the receipt of your letter of the 17th ultimo, 45 inclosing copy of a communication addressed to you by the German ambassador, inquiring whether the act approved January 7, 1904, for the protection of foreign literary, artistic, or musical works exhibited at the Louisiana Purchase Exposition, also removes the interdiction of importation of those articles. You request an expression of my views on the subject.

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