Copyright: Its History and Its Law. Bowker Richard Rogers

protection of playright

      In line with the dramatic act of 1897, the dramatic authors between 1895 and 1905 procured state legislation in the States of New Hampshire, New York, Louisiana, Oregon, Pennsylvania, Ohio, New Jersey, Massachusetts, Minnesota, California, Wisconsin, Connecticut and Michigan, differing somewhat in form, to give effect to the federal copyright laws in respect to dramatic performance or to apply the principles of common law through the punishment of dramatic companies disregarding performing rights.

      Citations

      Trade-Mark act

      Citations of all these laws will be found in Appendix A of the report of copyright legislation from the Register of Copyrights, included in the report of the Librarian of Congress for 1904; and the full text of the United States acts, except the later ones, are given in "Copyright Enactments 1783-1904" issued from the Copyright Office in 1905 as Bulletin No. 3, and in a second revised and enlarged edition, extending to 1906, reissued in 1906. The Trade-Mark act of February 20, 1905, supplemented by an act of May 4, 1906, covers the protection of labels, etc., excluded from copyright by the copyright act, and is given, with a list of trade-mark laws of foreign nations, and trade-mark treaties with them, rules, indexes, etc., in a Government publication, entitled "United States Statutes concerning the registry of trade-marks with the rules of the Patent Office relating thereto."

      Common law relations

      The act of 1790 received an interpretation, in 1834, in the case of Wheaton v. Peters (rival law reports), at the bar of the U. S. Supreme Court, which placed copyright in the United States exactly in the status it held in England after the decision of the House of Lords in 1774. The court referred directly to that decision as the ruling precedent, and declared that by the statute of 179 °Congress did not affirm an existing right, but created a right. It stated also that there was no common law of the United States and that (English) common law as to copyright had not been adopted in Pennsylvania, where the case arose. So late as 1880, in Putnam v. Pollard, claim was made that this ruling decision did not apply in New York, which, in its statute of 1786, expressly "provided, that nothing in this act shall extend to, affect, prejudice, or confirm the rights which any person may have to the printing or publishing of any books or pamphlets at common law, in cases not mentioned in this act." But the N. Y. Supreme Court decided that the precedent of Wheaton v. Peters nevertheless held. During the discussion of the present copyright code, Edward Everett Hale consulted with other veteran authors whose early works were passing out of copyright, with the intention of bringing a test case for the extension of copyright under common law after the expiration of the statutory period. But on proposing such a case to legal counsel he became assured that such a suit could not be maintained.

      Divided opinions

      As in the English case of Donaldson v. Becket, the decision in the American ruling case of Wheaton v. Peters came from a divided court. The opinion was handed down by Justice McLean, three other judges agreeing, Justices Thompson and Baldwin dissenting, a seventh judge being absent. The opinions of the dissenting judges, given in Eaton S. Drone's "A treatise on the law of property in intellectual productions," constitute one of the strongest statements ever made of natural rights in literary property, in opposition to the ruling that the right is solely the creature of the statute. "An author's right," says Justice Thompson, "ought to be esteemed an inviolable right established in sound reason and abstract morality." There seems, indeed, to be a sense of natural copyright among the American Indians; an Ojibwa brave will not sing the song belonging to another tribe or singer, and a Chippewa youth may learn his father's songs, on a customary gift of tobacco, but does not inherit the right to sing them.

      V

      SCOPE OF COPYRIGHT: RIGHTS AND EXTENT

      General scope

      The scope of copyright, or the nature and extent of the right or privilege, may be said to cover at common law identical rights with those in any other property, to use the phrase which, in Siam, transfers these rights to statutory law, but in statutory law must be taken to depend upon the terms of the statute.

      American provisions

      The new American copyright code, passed March 4, 1909, and in force July 1, 1909, in its fundamental provision broadly sets forth and specifically defines the scope of copyright, by providing (sec. 1): "That any person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right:

      "(a) To print, reprint, publish, copy, and vend the copyrighted work;

      "(b) To translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a non-dramatic work; to convert it into a novel or other non-dramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art;

      Oral addresses

      "(c) To deliver or authorize the delivery of the copyrighted work in public for profit if it be a lecture, sermon, address, or similar production;

      Dramas

      "(d) To perform or represent the copyrighted work publicly if it be a drama, or, if it be a dramatic work and not reproduced in copies for sale, to vend any manuscript or any record whatsoever thereof; to make or to procure the making of any transcription or record thereof by or from which, in whole or in part, it may in any manner or by any method be exhibited, performed, represented, produced, or reproduced; and to exhibit, perform, represent, produce, or reproduce it in any manner or by any method whatsoever;

      Music

      "(e) To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit; and for the purposes set forth in subsection (a) hereof, to make any arrangement or setting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced" – which last clause is, however, limited by an elaborate proviso requiring the licensing of mechanical musical reproductions in case the copyright proprietor permits any reproduction by that means, which proviso is given in full in the chapter on mechanical music.

      Previous American law

      The American law previously defined the scope of copyright (Rev. Stat. sec. 4952), as "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." The new code is both broader and more definite.

      Unpublished works

      The new American code is specific in preserving to an author previous to the publication of his work all common law rights in the comprehensive language (sec. 2): "That nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor."

      Common law scope

      In the Washburn form of the copyright bill it was proposed to include a clause to the effect "that subject to the limitations and conditions of this Act copyright secured hereunder shall be entitled to all the rights and remedies which would be accorded to any other species of property at common law." But this provision was not accepted by the Congressional Committees and does not form part of the copyright code as enacted.

      Common law in U. S. practice

      The common law of England became the common law of its colonies and finally of the sovereign States of the United States, and common law is therefore administered by the state rather than by the federal courts. In the case of Wheaton v. Peters, the U. S. Supreme Court went so far as to say "there is no common law of the United States," but federal courts accept and apply in each State the common law as accepted in that State, and in later years the U. S. Supreme Court has held, as in 1901, in Western