In signing the definitive convention, the several states made declaration of
class as follows:
Notification was made to the effect that the accession of Great Britain would
comprehend all the colonies and foreign possessions of Her Majesty. The
delegates from Spain were unable to give a similar notice as to Spanish
colonies from a failure to receive the authority in time, but the inclusion
will be made previous to exchange of ratification. Deeming it proper that I
should make a statement to the conference, in the sense of the instructions
contained in your dispatch No. 61, of August 18, ultimo, the following
remarks were submitted at the opening session: [Page 853]
Through a circular note of the Swiss federal council the Government
of the United States has been invited, in concert with the other
powers represented in the copyright conference held here in
September, 1885, to instruct and empower a delegate to attend this
conference, and to sign in behalf of the United States the
international convention for the general protection of literary and
artistic property, which was drafted ad
referendum by the conference of last year.
The Government of the United States again finds it impracticable to
depute a plenipotentiary delegate, and is constrained to withhold
its formal participation, as a signatory in the international
convention which resulted from the deliberations of 1885, and thus
transform that convention into a full diplomatic engagement. To
exhibit its benevolence, however, towards the principle involved,
the Government of the United States desires, with the pleasure of
this conference, to be represented here, and has conferred upon me
the honor to attend this conference as a delegate, provided that my
attendance is fully recognized and admitted to be without
plenipotentiary powers, but under the limitation and reservation
that the United States, not being a party to the proposed
convention, reserve their privilege of future accession under
provisions of Article 18 thereof, which declares that “countries
which have not joined in the present convention and which by their
municipal laws assure legal protection to the rights whereof this
convention treats, shall he admitted to accede thereto on their
request to that effect.”
Whilst not prepared to join in the proposed convention as a full
signatory, the United States does not thereby wish to be understood
as opposing the measure in any way, but on the contrary desires to
reserve without prejudice the privilege of future accession to the
convention, should it become expedient and practicable to do so.
Should any question exist, that the representation of the United
States in this conference, even under specific and recognized
limitation, is such a participation as would suffice to exclude them
from the category of the countries that have not joined in that
instrument, and thereby to exclude them also from the privilege of
future accession, should they desire to avail themselves of it, I
desire to emphasize the fact, that the course of the United States
is in nowise intended or to be construed as a participation in the
result either by acceptance or rejection. The position and attitude
of the United States is one of expectancy and reserve. The
Constitution of the United States enumerates among the powers
especially reserved to Congress, that to “Promote the progress of
science and the useful arts by securing for limited terms to authors
and inventors the exclusive right to their respective writings and
discoveries,” which implies that the origination and limitation of
measures to those ends rest with the legislative rather than the
treaty-making powers.
Copyright and patents are on the same footing of regulation by
federal legislation, and the executive branch of the Government
cannot, be unmindful of the continued pendency of its consideration
by the legislative department, or disregard the constitutional right
of that department to conclude international treaties on this
important subject.
The question of international copyright is one of great interest to
the United States. In fact few other nations can lay claim to
greater concern than that naturally felt by a people distinguished
for enlightened, extensive, and growing intellectual life, and
whilst not infringing upon the constitutional prerogative of
Congress to initiate and conclude copyright legislation, likewise to
define the rights of aliens and citizens within its jurisdiction,
the Executive, in his first annual message to Congress, inviting its
attention to the conference of last September, said, “Action is
certainly desirable to effect the object in view;” and the secretary
of state for foreign affairs, in his official dispatches relating to
this conference, freely expresses his concurrence with the principle
sought to be enunciated by the proposed convention, and conveys the
hope that the time is not distant when rights of property in the
creations of the mind may be universally secured under conditions
favorable alike to the author and to the world’s right to share in
the diffusion of ideas. The brain that creates is entitled to and
should receive its just and full compensation, is a sentiment having
its origin in the natural sense of honesty. Literary property has
been to some extent recognized in all ages, and is to-day guaranteed
in almost every State by domestic legislation. This recognition and
guarantee should be without distinction of nationality and without
regard to political frontiers. It is a matter of congratulation, and
redounds much to the credit of the Swiss Government, through whose
active effort the movement was successfully inaugurated and
supplemented by the patient and intelligent labors of the several
conferences held here at her invitation, that a just and permanent
settlement, once for all, of the grave question of the protection of
works of literature and art, so long and unjustly denied, is
promised by means of a uniform, efficacious, and complete
international convention.
My position and relation to the convention and any subsequent bearing it
might have was fully and unanimously accepted by the assent of all the
delegates to the declaration made by the president. The non-participation of
the United States as one of the original signatory powers of the convention
was a matter of free and avowed regret, there seeming to be but one
sentiment, that no international copyright union could be complete without
the United States, and great solicitude expressed that the convention should
contain no stipulations of a nature unacceptable to the United States. It
was very natural that the conference should have regarded it as very
unfortunate that the United States was not prepared to enter the union; they
realized that a great and literary country like the United States should
have had a potent voice in the formation of the convention, and a paramount
influence in procuring a favorable and acceptable basis for their
adherence.
I may be permitted to express the opinion that the Government of the United
States cannot afford to stand before the world as the only important and
deeply-concerned power persistently refusing to do common justice to foreign
authors, and that it may be justly anticipated, that the copyright union
being formed and acceded to by the more important European countries, it
will before long feel it difficult to abstain from becoming a party to it
also, and Congress will proceed to pave the way to the adhesion of the
United States to the union. There are large interests invested on the faith
of the existing law that should receive proper consideration and be
equitably dealt with. In the absence of international copyright, general and
uniform, just and full compensation for literary or artistic property is out
of the question, and the injustice is all the more conspicuous in view of
the fact that the discrimination made against authors is not made against
any other class of foreigners. Literary property is the only kind of
personal property not protected by our law when the owner is not a citizen
of the United States. Even to the foreign owners of patents and trade-marks,
which are so analogous to copyright, protection is accorded. The question
should be solved in an acceptance of the moral view, that if it be right for
a native citizen to have copyright in the productions of his intellect it is
equally right for an alien author to have the same property right recognized
and protected.
It is nearly half a century since Prussia first set the example of granting
international copyright. In 1837 a law was passed that every country might
secure copyright for its authors in Prussia upon granting reciprocity. This
was followed by England in the succeeding year. In consequence of these,
numerous international treaties of copyright have been negotiated. France
set the example during the Empire of forbidding the piracy of books and
works of arts published abroad without requiring reciprocity. Property in
ideas is now conceded in every civilized country by legislative enactment,
and the right to profit by the product of the brain should secure for the
author, in the words of Burke, “that justice which is not a matter of
climates and degrees.” Whilst literary rights may not partake of the same
unlimited nature as what is known technically as real or personal property,
they should certainly be valid and secured within certain limitations.
Outside of the ethical or abstract rights, copyright is a modern development
of the principle of property which every man of delicacy and honor must
commend, regardless [Page 855] of the
obscurity which may envelop its origin. The sophistical plea that the
culture and education of the American people is to be imperiled and books to
be placed beyond the reach of the masses by international copyright, should
be disregarded. If necessary the reverse could be supported by many
practical considerations. This, however, is not the question now submitted.
The primary matter is to do what is right and just. In the long run it is
the only safe, and proves the most profitable course, as well to nations as
to individuals. Why should we force our native authors to suffer a great
injustice from being forced into unusual competition with the wrongfully
appropriated labor of foreign authors.
The spirit of literary ambition and activity is daily becoming greater and
most diffusive among our people, quickening and nourishing into life a vast
and valuable native literature. It is impossible to determine the elements
which must conspire to form and build up a native literature. It is a
mystery, not solved to the satisfaction of scholars, why it should have put
forth so early and transitory bloom in Italy; why it should have ripened so
late in Germany and Scotland; why in England alone it should endure no
vicissitudes of seasons, but smile in eternal spring. But we may be
confidently assured that a people to whom Providence has given a stirring
history, a land abounding in landscapes of beauty and grandeur, and a high
degree of mental activity, extending the range of knowledge and scattering
its seeds among all classes without price cannot remain long destitute of a
most extensive and superior native literature. Already the peer of the
proudest in military achievements and material prosperity, truth, freedom,
and civilization never presented a richer field and a brighter future for
intellectual laborers than is to be found in the United States.
Inexhaustible material sleeps in the womb of morning, and the forming hand
of letters is rapidly seizing and vitalizing these mighty elements. The day
will soon come when the United States will be as conspicuous in the markets
of the world for its literary as it is to-day for its material products.
I transmit under a separate cover a copy of convention as signed.
[Inclosure in Mr. Winchester’s No.
81.—Translation.]
Convention concerning the establishment of an
International Union for the protection of literary and artistic
works.
The President of the Republic of Liberia; His Majesty the Emperor of
Germany, King of Prussia; His Majesty the King of the Belgians; His
Catholic Majesty the King of Spain, in his name Her Majesty the Queen
Regent of the Kingdom; the President of the French Republic; Her Majesty
the Queen of the United Kingdom of Great Britain and Ireland, Empress of
India; the President of the Republic of Hayti; His Majesty the King of
Italy; the Federal Council of the Swiss Confederation; Sis Highness the
Bey of Tunis equally animated with the desire to protect, as efficiently
and uniformly as possible, the rights of authors in regard to their
literary and artistic works,
Have resolved to conclude a convention to that end, and have named as
their plenipotentiaries, that is to say: (names and titles of
plenipotentiaries) who, after communication of their respective full
powers, found in good and due form, have agreed upon the following
articles:
Article I.
The contracting parties hereby establish a state of Union for the
protection of the rights of authors in regard to their literary and
artistic works.
[Page 856]
Article II.
Authors under the jurisdiction of one of the countries of the Union, or
their legal representatives, shall enjoy in the other countries, for
their works, whether published in one of such countries or not
published, the rights which the laws thereof now or shall hereafter
grant to natives.
The enjoyment of these rights is subject to the fulfillment of the
conditions and formalities prescribed by the legislation of the country
where the work originates; and cannot exceed, in the other countries,
the duration of the protection accorded in the said country of
origin.
The country of the first publication of a work shall be deemed the
country of origin, or, if the publication shall have been simultaneously
effected in several countries of the Union, that shall be deemed the
country of origin whose legislation grants the shortest term of
protection.
In the case of unpublished works, the country to which the author belongs
is deemed to be the country of origin of the work.
Article III.
The stipulations of the present convention shall equally apply to the
publishers of literary or artistic works, published in one of the
countries of the Union, whose author belongs to a country not a member
of the Union.
Article IV.
The phrase “literary and artistic works” comprises books, pamphlets, or
any other writings, dramatic or dramatico-musical works, musical
compositions with or without words, works of design, painting,
sculpture, engraving, lithographs, illustrations, geographical maps,
plans, sketches, and models in relief relating to geography, topography,
architecture, or the sciences in general; in short, any production
whatever of the domain of literature, science, or art, which can be made
public by any mode of impression or reproduction whatsoever.
Article V.
Authors under the jurisdiction of one of the countries of the Union, or
their legal representatives, shall enjoy, in the other countries, the
exclusive right of translating or authorizing the translation of their
works, until the expiration of ten years dating from the publication of
the original work in one of the countries of the Union,
For works published in installments, the period of ten years only begins
to count from the date of the publication of the last part of the
original work.
For works composed of several volumes published at intervals, as well as
for the bulletins or pamphlet issues published by literary or learned
societies or by private individuals, each volume, bulletin, or pamphlet
issue is, in so far as concerns the ten-year period, to be deemed a
separate work.
In the cases provided for by the present article, and for the
determination of the periods of protection, the 31st of December of the
year of publication of the work is admitted as the date of
publication.
Article VI.
Lawful translations are protected as original works. They consequently
enjoy the protection stipulated by Articles II and III, in so far as
concerns their unauthorized reproduction in the countries of the
Union.
It is understood that, in the case of a work whereof the right of
translation has become public property, the translator cannot prevent
the same work from being translated by other writers.
Article VII.
Articles which appear in newspapers or periodicals published in one of
the countries of the Union may be reproduced in original or in
translation in the other countries of the Union, unless the authors or
publishers shall have expressly forbidden it. In the case of
periodicals, it will be sufficient if the prohibition be announced in a
general manner on the first page of each number thereof.
In no case shall this prohibition apply to articles of political
discussion or to the reproduction of news of the day or of current
items.
[Page 857]
Article VIII.
In so far as concerns the liberty of lawfully making compilations from
literary or artistic works for publications intended for educational
purposes or of a scientific character or for anthologies (chrestomathies), the matter is reserved for
decision under the legislation of the several countries of the Union, or
under special arrangements existing or hereafter to be concluded between
them.
Article IX.
The stipulations of Article II apply to the public representation of
dramatic or dramatico-musical works, whether such works be published or
not.
The authors of dramatic or dramatico-musical works, or their legal
representatives, are during the term of their exclusive right of
translation in like manner protected against the unauthorized public
representation of translations of their works.
The stipulations of Article II likewise apply to the public performance
of unpublished musical works, or of those published works whereof the
author has expressly declared on the title-page or at the commencement
of the work that he forbids the public performance thereof.
Article X.
Unauthorized indirect appropriations of a literary or artistic work,
under various designations, such as adaptations, arrangements of music,
and the like, are expressly comprised among the unlawful reproductions
to which the present convention applies, when they are merely the
reproduction of a particular work, in the same form or under another
form, with unessential changes, additions, or abridgments so made as not
to give the character of a new original work.
It is understood that, in the application of the present article, the
courts of the several countries of the Union will, if the occasion be
presented, take cognizance of the reservations made by their respective
laws.
Article XI.
In order that the authors of works protected by the present convention
shall, in default of proof to the contrary, be regarded as such, and
consequently be admitted to institute proceedings against infringements
before the courts of the several countries of the Union, it will be
sufficient that their name be indicated on the work in the usual
way.
In regard to anonymous and pseudonymous works, the publisher whose name
appears on the work is entitled to protect the rights belonging to the
author. He is, without other proof, to be taken to be the legal
representative of the anonymous or pseudonymous author.
It is, nevertheless, agreed that the courts may, if the case arise,
require the production of a certificate issued by the competent
authority, showing that the formalities prescribed by law in the country
of origin have been fulfilled, as contemplated in Article II.
Article XII.
Any pirated work may be seized upon importation into those countries of
the Union where the original work is entitled to legal protection.
The seizure shall take place conformably to the domestic legislation of
each State
Article XIII.
It is understood that the provisions of the present convention shall not
in any way prejudice the right appertaining to the Government of each
country of the Union to permit, to control, or to prohibit, by measures
of legislation or of domestic police, the circulation, representation,
or exhibition of any work or production in regard to which the competent
authority may find it necessary to exercise that right.
Article XIV.
Except as to the reserves and conditions to be determined by common
accord, the present convention applies to all works which, at the moment
of its coming into operation, have not yet fallen into the public domain
[become public property] in the country of origin.
[Page 858]
Article XV.
It is understood that the Governments of the countries of the Union
respectively reserve to themselves the right to enter into separate and
particular arrangements with one another, in so far as such arrangements
may secure to authors or their legal representatives more extended
rights than those conferred by the Union, or may embody additional
stipulations not contrary to the present convention.
Article XVI.
An International Bureau is established under the name of “Bureau of the
International Union for the Protection of Works of Literature and
Art.”
This Bureau, whereof the expense shall be borne by the administrations of
all the countries of the Union, is placed under the high authority of
the Swiss Confederation and acts under its supervision. The functions
thereof are prescribed by common accord between the countries of the
Union.
Article XVII.
The present convention maybe subject to revisions, with a view to
introducing therein amendments calculated to perfect the system of the
Union.
Questions of this character, as well as those which, in other regards,
concern the increased utility of the Union, will be considered in
conferences to be held successively in the countries of the Union by
delegates of the said countries.
It is understood that no modification of the present convention shall be
binding upon the Union except through the unanimous assent of the
countries composing it.
Article XVIII.
Countries which have not joined in the present convention, and which, by
their municipal laws, assure legal protection to the rights whereof this
convention treats, shall be admitted to accede thereto on their request
to that effect.
Such accession shall be notified in writing to the Government of the
Swiss Confederation, and by the latter to all the others.
Such accession shall carry with it, as of full right, acceptance of air
the clauses and admission to all the benefits stipulated by the present
convention.
Article XIX.
Countries acceding to the present convention shall also have the right to
accede thereto, at any time, on behalf of their colonies or foreign
possessions.
They may do so, either by a general declaration whereby all their
colonies or possessions are comprised in the accession; or by expressly
naming those comprised therein, or by merely indicating those which are
excluded.
Article XX.
The present convention shall come into operation three months after the
exchange of ratifications; and shall remain in force indefinitely until
the lapse of a year from the day on which notice of termination shall
have been given.
Such notice of termination shall be given to the Government charged with
receiving accessions; and shall have no effect save with respect to the
country which withdraws, the convention remaining in full force and
effect for the other countries of the Union.
Article XXI.
The present convention shall be ratified and the ratifications exchanged
at Berne within the space of one year at farthest.
In witness whereof, the respective plenipotentiaries have signed it, and
have affixed to it the seals of their arms.
Done at Berne,
the ninth day of
the month of September of the year one thousand eight hundred
and eighty-six.
[
Signatures
.]
[Page 859]
Additional Article.
The plenipotentiaries, being met to sign the convention concerning
the establishment of an International Union for the protection of
literary and artistic work, have agreed upon the following
additional article, which shall be ratified at the same time as the
convention to which it relates:
The convention concluded this day in nowise affects the continuance
of any conventions at present in force between the contracting
States, in so far as such conventions secure to authors or their
legal representatives rights more extended than those granted by the
Union, or contain other stipulations which are not contrary to this
convention.
In witness whereof the respective plenipotentiaries have signed the
present additional article.
Done at Berne
the ninth day of
the month of September, of the year one thousand eight
hundred and eighty-six.
[Signatures.]
final protocol.
In proceeding to the signature of the convention concluded this day,
the undersigned plenipotentiaries have declared and stipulated as
follows:
1. As regards Article IV, it is agreed that those countries of the
Union, where the character of artistic works is not refused to
photographs, engage to admit them to the benefits of the convention
concluded to-day, from the date of its coming into effect. They are,
however, not bound to protect the authors of such works further than
is permitted by their own legislation, except in the case of
international engagements already existing, or which may hereafter
be entered into by them.
It is understood that an authorized photograph of a protected work of
art shall enjoy legal protection in all the countries of the Union,
as contemplated by the said convention, for the same period as the
principal right of reproduction of the work itself subsists, and
within the limits of private arrangements between those who have
legal rights.
2. As regards Article IX, it is agreed that those countries of the
Union whose legislation implicity includes choregraphic works
amongst dramatico-musical works, expressly admit the former works to
the benefits of the convention concluded this day.
It is, however, understood that questions which may arise touching
the application of this clause are reserved for the respective
tribunals to decide.
3. It is understood that the manufacture and sale of instruments for
the mechanical reproduction of musical airs which are copyright
shall not be considered as constituting an infringement of musical
copyright.
4. The common agreement alluded to in Article XIV of the convention
shall be in the following form:
The application of the convention to works which have not become
public property at the time when it comes into force, shall be
effected according to the stipulations on this head which may be
contained in special conventions either existing or to be
concluded.
In the absence of such stipulations between any countries of the
Union, the resspective countries shall regulate, each for itself, by
its domestic legislation, the manner in which the principle
contained in Article XIV is to be applied.
5. The organization of the international bureau established in virtue
of Article XVI of the convention shall be fixed by a regulation
which will be drawn up by the Government of the Swiss
Confederation.
The official language of the international bureau will be French.
The international bureau will collect all kinds of information
relative to the protection of the rights of authors over their
literary and artistic works. It will arrange and publish such
information. It will study questions of general utility likely to be
of interest to the Union, and, by the aid of documents placed at its
disposal by the different administrations, will edit a periodical
publication in the French language treating questions which concern
the Union. The Governments of the countries of the Union reserve to
themselves the faculty of authorizing, by common accord, the
publication by the bureau of an edition in one or more other
languages if experience should show this to be requisite.
The international bureau will at all times be at the disposal of
members of the Union, in order to furnish them with any special
information they may require relative to the protection of literary
and artistic works.
The administration of the country where a conference is about to be
held will prepare the programme of the conference with the
assistance of the international bureau.
The director of the international bureau will attend the sittings of
the conferences, and will take part in the discussions without a
deliberative vote. He will make an [Page 860] annual report on his administration, which
shall he communicated to all the members of the Union.
The expenses of the bureau of the International Union shall be borne
in common by the contracting states. Unless a fresh arangement be
made, they cannot exceed the sum of 60,000 francs a year. The sum
may be increased by the decision of one of the conferences provided
for in Article XVII.
The share of the total expense to be paid by each country shall be
determined by the division of the contracting and acceding states
into six classes, each of which shall contribute in the proportion
of a certain number of units, viz:
|
Units. |
|
Units. |
| First class |
25 |
Fourth class |
10 |
| Second class |
20 |
Fifth class |
5 |
| Third class |
15 |
Sixth class |
3 |
These coefficients will be multiplied by the number of states of each
class, and the total product thus obtained will give the number of
units by which the total expense is to be divided. The quotient will
give the amount of the unity of expense.
Each state will declare, at the time of its accession, in which of
the said classes it desires to be placed.
The Swiss administration will prepare the estimates for the bureau,
superintend its expenditures, make the necessary advances, and draw
up the annual account, which shall be communicated to all the other
administrations.
6. The next conference shall be held at Paris within the period of
from four to six years, dating from the coming into force of this
convention.
The French Government will fix the date thereof within these limits
after having taken the advice of the international bureau.
7. It is agreed that as regards the exchange of ratifications
contemplated in Article XXI, each contracting party shall give a
single instrument, which shall be deposited with those of the other
states, in the archives of the Government of the Swiss
Confederation. Each party shall receive in exchange a copy of the
procès-verbal of the exchange of
ratifications, signed by the plenipotentiaries present thereat.
The present final protocol, which shall be ratified with the
convention concluded this day, shall be considered as forming an
integral part of the said convention, and shall have the same force,
effect, and duration.
In witness whereof, the respective plenipotentiaries have clothed it
with their signatures.
Done at
Berne, the ninth day of the month of September of
the year one thousand eight hundred and
eighty-six.
[
Signatures
.]
