Copyright: Its History and Its Law

"(Sec. 7.) That no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this Act and has not been already copyrighted in the United States, or in any publication of the United States Government, or any reprint, in whole or in part, thereof: Provided, however, That the publication or republication by the Government, either separately or in a public document, of any material in which copyright is subsisting shall not be taken to cause any abridgment or annulment of the copyright or to authorize any use or appropriation of such copyright material without the consent of the copyright proprietor."

Government use

It is not to be inferred from the provision as to Government publications, that the United States has itself a right to use copyright material without consent of the copyright proprietor. The sovereignty of the nation is not to transgress the rights of private property, unless in the necessary exercise of war or police powers, as the sovereign state cannot take land over which it is theoretically sovereign from a private owner except for public purposes and then only by condemnation proceedings at law and with fair remuneration to the proprietor. No right of eminent domain in respect to copyrights is asserted by the United States, and the provision means only that material, otherwise copyrightable, furnished by a public officer or otherwise to the Government, becoming the property of the Government, is put freely at the service of the people.

"Author" and "writing" definitions

The constitutional provision is thus given the broadest interpretation in the act. In the narrow sense the dictionaries define "author" as "one who composes or writes a book" (Webster), and "writing" variously as "a record made by hand," "a production of the pen," "any expression of thought in visible words" (Century); "anything expressed in letters" (Webster, Stormonth, Standard); "a written paper," "a legal instrument" (Johnson); "a literary production" (Chambers); "forming by the hand letters or characters on paper or other suitable substance" (Bouvier's Law Dictionary); "words made legible by any device," "a document, whether manuscript or printed, as opposed to mere spoken words" (Rapalje and Lawrence, Law Dict.); "expression of ideas by visible letters" (Anderson's Dict. of Law). For years Massachusetts voters cast a handwriting ballot, until the courts held that a printed ballot fulfilled the "written ballot" requirement of the Massachusetts constitution. But in the wider sense an author is "a creator, an originator" (Webster, Standard), and a writing is the record or expression of a thought or idea.

Interpretation by Congress and courts

Congress, upheld by the courts, had specifically included (law of 1870) under "writings" in the Constitution a "statue," "statuary," "model," without requiring the artist to make a preliminary sketch (if that be specifically a writing) – otherwise, as sculptors are not "inventors" making "discoveries," they could not be protected at all; and in other countries protection has been extended to oral delivery of an address presumably but not necessarily written. It might be claimed, under a restrictive interpretation of the Constitution, that only works specifically relating to "science and useful arts" might be protected, although literature and the fine arts are admittedly especial subjects of copyright. While it is for the judiciary and not for the legislature to construe or interpret the Constitution, the right of Congress to pass laws based upon its understanding of the Constitution, subject to the final decision of the federal courts, has not been challenged. And the code of 1909 by its classification (sec. 5) and its inclusive clause (sec. 4) is most comprehensive in this respect.

Supreme Court decisions

The U. S. Supreme Court, in 1884, in the decision of Burrow-Giles Lith. Co. v. Sarony, extending the principles of the copyright act to cover photographs, said through Justice Miller: "By 'writings' is meant the literary productions of those authors, and Congress very properly has declared these to include all forms of writings, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression. The only reason why photographs were not included in the extended list of 1802 is probably that they did not exist, as photography as an art was then unknown." It seems evident that the phrase "visible expression" as used in this decision was intended to give a broad definition and not to narrow the definition by the exclusion, for instance, of "audible expression," as otherwise the performance of a drama or of a musical composition could not be included under copyright protection. This view is confirmed by the later decision of the same court, in 1899, in Holmes v. Hurst: "It is the intellectual production of the author which the copyright protects, and not the particular form which such production ultimately takes; and the word 'book' is not to be understood in its technical sense as a bound volume, but any species of publication which the author selects to embody his literary product."

Originality and merit

The courts are disposed to extend copyright to any work involving intellectual labor or brain skill, without emphasizing originality or literary merit. In the important case of Walter v. Lane, in which a verbatim report of Lord Rosebery's speeches was protected, by decision of the House of Lords, in 1900, Lord Chancellor Halsbury said: "Although I think in these compositions (i. e. the work of the stenographer) there is literary merit and intellectual labor, yet the statute seems to me to require neither – nor originality either in thought or language … the right in my view is given by the statute to the first producer of a book, whether that book be wise or foolish, accurate or inaccurate, of literary merit, or of no merit whatever."

"Book" definitions

The word "book" covers the great body of copyright property, and has been many times the subject of judicial construction giving the most comprehensive meaning to the term. The English judges early held that protection "could not depend upon the form of the publication"; "that a composition on a single sheet might well be a book within the meaning of the legislature"; and that "any composition, whether large or small, is a book within the meaning of this act." The English law of 1842 afterward specifically construed the word "book" "to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart or plan, separately published." The law of the United States makes no definition of the term, except by specifically including as books "composite and cyclopædic works, directories, gazetteers, and other compilations"; but our judges have agreed with the English view, Judge Thompson holding, in 1828, in Clayton v. Stone, that a "book" may be printed "only on one sheet," and that "the literary property intended to be protected by the Act is not to be determined by the size, form or shape … but by the subject-matter," and Judge Leavitt, in 1862, in Drury v. Ewing, that a diagram for cutting dresses, with directions, printed on a single sheet, being "the product of thought and mental toil," was a "book" within the benefit of the law.

Inclusions adjudicated

In fact, though all English and American statutes have been avowedly for "the encouragement of learning" and "the progress of science and useful arts," the courts have construed the laws to cover in the widest sense any "useful book." The courts have indeed denied copyright protection only to works having absolutely no literary quality, such as advertisements (unless they contain original literary matter) and advertising cuts, labels, blank books, or blank forms. Even booksellers' and other trade catalogues, having descriptive notes or distinctive arrangement and combination, can be copyrighted. Compilations of existing materials, from common sources, arranged and combined in an original and useful form, receive the same protection as wholly original matter. Drone schedules English or American judicial constructions extending this principle to: (1) general miscellaneous compilations; (2) annotations consisting of common materials; (3) dictionaries; (4) books of chronology; (5) gazetteers; (6) itineraries, road and guide books; (7) directories; (8) maps and charts; (9) calendars; (10) catalogues; (11) mathematical tables; (12) a list of hounds; (13) abstracts of titles to lands; and collections of (14) statistics, (15) statutory forms, (16) recipes, and (17) designs – several of which classes are now specifically included in the new American statute. Later decisions have confirmed several of these categories and have specified also (18) trotting records; (19) racing charts; (20) newspaper reports of public speeches; (21) telegraphic codes; (22) mining reports; (23) a tradesman's alphabetical list of wares; (24) a list of public documents; (25) mathematical calculations; (26) legal forms; (27) an application form for membership; (28) complications of railroad time-tables; (29) commercial circulars, protected by a Canadian decision; (30) school registers, and (31) stud book list of horses.

Exclusions adjudicated

On the other hand, the courts have declined to include as proper subjects of copyright (a) methods or plans, as for compiling credit-ratings or systems, as in the case of (b) shorthand, (c) trading stamps or coupons as described in a copyrighted advertising pamphlet, or (d) of letter-file indexes; (e) a sleeve pattern chart; (f) the face of a barometer; (g) a railway ticket designed for punching; (h) a day's sporting tips; (i) blank books; or (j) blank forms, as a cricket score-card; and (k) monograms.

Inclusions defined

In the new Rules and Regulations of the Copyright Office promulgated as approved by the Librarian of Congress in 1910 as Bulletin No. 15, it is said as to books:

"(4, a) Books.– This term includes all printed literary works (except dramatic compositions) whether published in the ordinary shape of a book or pamphlet, or printed as a leaflet, card, or single page. The term 'book' as used in the law includes tabulated forms of information, frequently called charts; tables of figures showing the results of mathematical computations such as logarithmic tables; interest, cost, and wage tables, etc., single poems, and the words of a song when printed and published without music; librettos; descriptions of moving pictures or spectacles; encyclopædias; catalogues; directories; gazetteers and similar compilations; circulars or folders containing information in the form of reading matter other than mere lists of articles, names and addresses, and literary contributions to periodicals or newspapers."

Exclusions defined

On the other hand, definitions are made negatively that:

"(5) The term 'book' can not be applied to —

"Blank books for use in business or in carrying out any system of transacting affairs, such as record books, account books, memorandum books, diaries or journals, bank deposit and check books; forms of contracts or leases which do not contain original copyrightable matter; coupons; forms for use in commercial, legal, or financial transactions, which are wholly or partly blank and whose value lies in their usefulness and not in their merit as literary compositions.

"Directions on scales, or dials, or mathematical or other instruments; puzzles; games; rebuses; labels; wrappers; formulæ on boxes, bottles, and other receptacles of articles for sale or meant to accompany such articles.

"Advertisements or catalogues which merely set forth the names, prices, and places where articles are for sale.

"Prefaces or other introductory matter to works not themselves entitled to copyright protection, such as blank books.

"Calendars are not capable of registration as such, but if they contain copyrightable reading matter or pictures they may be registered either as 'books' or as 'prints' according to the nature of the copyrightable matter."

The Rules also make the following negative definitions:

"(12) No copyright exists in toys, games, dolls, advertising novelties, instruments or tools of any kind, glassware, embroideries, garments, laces, woven fabrics, or any similar articles."

The definition of other classes of subject-matter given in the new Rules and Regulations of the Copyright Office, including that of maps, will be found in the chapters on dramatic and musical copyright and on artistic copyright.

Blank books

In the case of Everson v. Young, then Librarian of Congress, Judge Cole, of the Supreme Court of the District of Columbia, in 1889, refused a mandamus against the copyright officer while admitting that "the librarian had no discretion" on the ground that mandamus "will not be used to order a vain thing to be done" and that a blank book "containing not a single English sentence" is not a subject of copyright.

"The copyright statutes," as is said in Circular Letter no. 32 of the Copyright Office, "in designating the classes of articles which may be registered in this office do not mention blank forms or blank books. The United States courts which have jurisdiction in cases arising under the copyright laws have held that blank forms or blank books or similar articles for use in themselves are not subject to copyright, and hence are not registrable in this office. A bill was introduced in Congress in 1904 proposing to extend the protection of the copyright law to vouchers, certificates, or other business forms, wholly or partly printed. But the measure was not favorably acted upon and did not become law." This exclusion does not refer to such publications as an insurance policy or a legal document, on which blank spaces are to be filled in, which are accepted as proper subject-matter for copyright by the Copyright Office.

Combinations and arrangements

The copyright under certain categories above scheduled may be in the combination and arrangement only, or it may be also in any original material included with other material. Quantity is not an essential element in copyright so much as "substantial importance." An English court protected a passage of only sixty words.

Advertisements

In respect to advertisements and advertising matter as such, the new American code is silent, and court decisions, mostly English, have been contradictory. In 1863 Vice-Chancellor Page Wood, in Hotten v. Arthur, "found no difficulty" in deciding that a catalogue of old books was a subject of copyright "notwithstanding that the catalogues were for the purpose of advertising the plaintiffs' stock-in-trade, and were not in themselves offered for sale"; but in 1872 Lord Romilly, in Cobbett v. Woodward, made an absolutely contrary decision, saying: "But at the last, it comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong in doing so, unless you lead the public to believe that you sell the articles of the person whose advertisement you copy." This last decision was definitely overruled and in 1882, in Maple v. Junior Army & Navy Stores, the English Court of Appeal, in protecting an advertising catalogue consisting mostly of engravings of furniture, said through Justice Jessel: "The case which has done all the mischief is Cobbett v. Woodward… I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights." In 1906, in Davis v. Benjamin, the Chancery Division held a sheet of advertising illustrations with headlines and prices a book.

Undistinctive advertising not protectable

An advertisement per se of an ordinary character, the courts may decline to protect, either on behalf of the advertiser or of the publisher of the periodical in which it appears; thus possibly ordinary advertisements might be copied by another paper, to give an inflated impression of its advertising patronage unless enjoined for intent to deceive. On the other hand, characteristic advertisements, as those for which department stores pay large sums to advertisement writers, could doubtless be copyrighted to prevent their use by rival firms, though the advertiser would scarcely be interested in preventing the wide diffusion of his advertisement with his name by its gratuitous publication elsewhere. Some street-car advertisements, however, bear copyright notices. Whether the proprietor of a copyrighted periodical could prevent the use of a copyrightable advertisement not protected by specific copyright, in a rival newspaper, would be questionable, though a publisher might be granted an injunction for the combination or arrangement of copyrightable advertisements in his periodical. In 1892, in Lamb v. Evans, Lord Justice Lindley, in the English Court of Appeal, said: "I do not see myself the difficulty in the publisher's having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd." An advertisement appearing in several publications, some of them not copyrighted, could only be protected in these latter by specific copyright notice, even though covered in the copyrighted periodicals as a component part. The Copyright Office can make no clear line of demarcation in advance as to advertisements, but it has declined in a recent instance to accept for registry recipes printed on tin and inserted in packages of flour to advertise the flour, which could scarcely be accepted as a "book" or other copyrightable matter.

New editions

New editions are protected under the American code as new works (sec. 6), to the extent that they include new material; and this is in accord with the whole trend of court decisions. In 1852 Vice-Chancellor Kindersley stated the doctrine that "if a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, quoad those, it is a new work." So in 1870, in Black v. Murray & Son, Lockhart's edition of Scott's "Border Minstrelsy" was protected, on Lord President Inglis' decision, to the full extent of the notes: "Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject of copyright at all; but that must always depend upon circumstances. A new edition of a book may be a mere reprint of an old edition, and plainly that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, the new edition of a book may be so enlarged and improved as to constitute in reality a new work, and that just as clearly will entitle the author to a copyright running from the date of the new edition." A few colorable alterations or unimportant notes may not justify a new copyright; a Scotch justice, however, contended that Walter Scott's change of a single word in "Glenallan's Earl" authorized a copyright for the new edition, though another law lord differed, and the case was decided on other grounds. It is doubtful indeed whether there can be protection of a single word, a question which arose in the Belgravia case, unless having association in the public mind as a trade-mark. In any event, the copyright on a new edition, whether made by rewriting, extending, condensing, annotating, or otherwise altering, runs independently of the term of the original or any other edition, covers only the new parts, and cannot prevent the issue by others of the original or any other edition on which copyright has expired. This is made entirely clear in the new code (sec. 6).

Copyright comprehensive

"A book must include every part of the book; it must include every print, design, or engraving which forms part of the book, as well as the letterpress therein, which is another part of it," according to the ruling decision of Vice-Chancellor Parker, in 1852, in the English case of Bogue v. Houlston. To the same effect Drone says: "The copyright protects the whole and all the parts and contents of a book: when the book comprises a number of independent compositions, each of the latter is as fully protected as the whole." The copyright under the new law protects (sec. 3) "all the copyrightable component parts of the work copyrighted." The practice of some publishers in copyrighting a magazine and also specific articles or engravings seems, therefore, a work of doubtful expediency. The new law specifically gives to the proprietor of "composite works or periodicals" (sec. 3) "all the rights in respect thereto which he would have if each part were individually copyrighted."

Non-copyrightable parts excepted

On the other hand, copyright cannot extend to any part of a book not subject in itself to copyright, even under the old law, and the new law (sec. 3) is perfectly plain. The general copyright is not, however, vitiated as to copyrightable portions by its seeming to cover non-copyrightable portions, as was held by Lord Kenyon, in 1801, in Cary v. Longman. But when copyright is claimed on a work partly composed of uncopyrightable matter the courts may require the claimant, on interrogatories, to designate which parts are and which are not original. "If the parts cannot be separated," says Drone, "it would seem that copyright will not vest in any of it." The new code is to the same effect.

Book illustrations

The application of these principles to the protection of a "new edition" which is new only with respect to added illustrations, is very simple. It is only the new illustrations which can be copyrighted, and it is matter for question whether the endeavor to protect an edition of unaltered text by a general copyright notice which really covers only a few added illustrations would not be a false use of the copyright notice. A proper copyright notice on an illustrated book will, however, protect the illustrations against indirect as well as direct reproduction; thus in 1908 in Harper v. Kalem, Judge Lacombe in the U. S. Circuit Court in New York protected certain illustrations in "Ben Hur" against their reproduction in moving pictures.

Translations

In respect to translations, the new American law is specific, not only in its mention of "translations" (sec. 6), but in giving (sec. 1, b) the exclusive right "to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work." The early American precedent was the case of "Uncle Tom's cabin," in 1853, in which Mrs. Stowe had copyrighted not only the original work, but a German translation which she had provided; Justice Grier in the U. S. Circuit Court held that she could not recover against one Thomas who was issuing another German translation, since it was not "copies of her book." This case was previous to the statute permitting authors to reserve the right of translation, and the new code as above cited fully protects translations. The author of a copyrighted work thus has the exclusive right to translate his work, or license its translation, into any other language, and under such a license the translator with the consent of the author would have the right to copyright his translation. Where the author employs a translator for hire, the copyright in the translation may be secured by the author of the original work, but under ordinary circumstances the copyright in the translation would be secured by or on behalf of the translator. In case of contest on this point, the issue would be a question of contract, and in the absence of contract or specific assent the courts would doubtless base their decisions on the circumstances of the case so far as they could be held to imply contract. The inclusion of the notice of copyright of the original work on a translation, without specific copyright of the translation itself, would be held, it seems probable, to protect the translation under the author's original copyright; but this would limit the copyright term on the translation to the copyright term of the original work, and for this and other reasons a specific copyright on each translation is desirable, in which case the notice of copyright of the original work need not be given on the translation.