Page:Houghton Mifflin Co. v. Stackpole Sons (104 F.2d 306).pdf/4

Rh Congress of an International Copyright Law, which will protect the rights of authors, and will enable American writers to ask from foreign nations the justice we shall then no longer deny on our own part.” Putnam, op. cit. p. 107; Bowker, Copyright; Its History and Its Law (1912), p. 359.

By 1886, as Mr. Putnam says (op. cit. p. 46), it had become “not so much a question whether there should or should not be an International Copyright, but simply what form the law should take.” The first bill reported by the Judiciary Committee merely omitted the previous limitation restricting copyright to citizens or residents of the United States. In the report of the Committee on Patents of the House of Representatives, accompanying the bill which later became the Act of March 3, 1891, 26 Stat. 1106—known as the International Copyright Act—it was said that “substantially all the world, except Great Britain and the United States, treat foreigners and citizens alike in the matter of copyright,” and that the Queen was empowered by law “to establish reciprocity with us if we will permit it, and we stand alone in rejecting and refusing overtures.” H.R.Report to accompany H.R.10881, June 10, 1890, quoted in full in Putnam, op. cit. pp. 76–130. Here we see the reason for the reciprocity provision which had long been advocated by many, as by President Arthur in his message of December, 1884, and which was added to the Act. It was to put the United States in a position where it could bargain with other nations, especially with Great Britain, to obtain equal treatment in those countries for American citizens.

Indeed, the form in which the Act of 1891 was passed suggests the intent to make an all-inclusive grant of copyright protection, perhaps even more clearly than does the present statute. Sections 1 and 2 of that Act, 26 Stat. p. 1106, c. 565, were in the form of amendments to Sections 4952 and 4954, Rev.Stat.1878, and struck from them the limitation of copyright privileges to citizens or residents of the United States. The reciprocity provision applying “to a citizen or subject of a foreign state or nation” appeared only in a new and separate section at the end of the statute, Section 13, 26 Stat. 1110. Cf. Bowker, op. cit. pp. 363–364.

But the present statute, passed in 1909, was intended to work no change in this regard; the report of the House Committee on Patents in 1909 stated that “the first part of section 8 makes no change in existing law”; subsection (a) was intended to give to a foreign author actually domiciled here when his work was first published “all the rights we give to our own citizens even though he be a citizen of a foreign state” which does not reciprocate; and “subsection (b) is intended, with some slight modifications, to be declaratory of the provisions of the act of March 3, 1891.” H.R.Rep. No. 2222, to accompany H.R.28912, 60th Cong., 2d Sess., Feb. 22, 1909, at p. 10.

In 1904, the Act of 1891 was construed, in harmony with the view we have taken of it, by Attorney General—later Mr. Justice—Moody. In an opinion to the Secretary of War he held that inhabitants of the Philippine Islands were entitled to the benefits of the statute, though they were not citizens or subjects of a foreign state or nation. Further, they were not citizens or residents of the United States and must pay fees accordingly, under § 4958, Rev.Stat., as amended by § 4 of the Act of 1891, 26 Stat. 1108. 25 Op.Atty.Gen. 179, 181, 182.

Outside of Attorney General Moody’s opinion, there is little in the way of direct authority on the matter, undoubtedly because the question has not previously been important. Defendants refer to general statements, apparently contrary to the construction suggested, in Ladas, The International Protection of Literary and Artistic Property (1938), p. 703, and Weil, Law of Copyright (1917), pp. 260–261; but it is doubtful if these indicate anything more than that the authors had not thought of the problem. So, too, the rules of the Copyright Office (Rules and Regulations, 2(1), 17 U.S.C.A. following section 53) dealing with persons who may secure copyright do not cover this specific case; but this omission did not control or limit departmental practice in issuing certificates of registration, as this very case shows.

Any other result than this would be unfortunate, for it would mean that stateless aliens cannot be secure in even their literary property. True, the problem of statelessness has only become acute of late years, but it promises to become increasingly more difficult as time goes on. The rule contended for by the defendants would mean that the United States, contrary to