No. 442.
Mr. Winchester to Mr. Bayard.

No. 81.]

Sir: I have the honor to report that in obedience to your instructions I attended, as the United States delegate, the International Copyright Conference, which met at Berne on the 6th instant, in the hall of the council of states. The following states were represented: Great Britain, Germany, France, Spain, Italy, Belgium, Switzerland, Liberia, Hayti, Tunis, and the United States. Mr. Droz, vice-president of the Swiss Confederation, was again chosen president of the conference, and the French ambassador at Berne, Mr. Arago, to be vice-president. The declaration proposed by the French Government relative to the sense of Articles 5, 7, 9, and 10, after a brief discussion, was withdrawn. A verbal omission in the draft convention being corrected, and any amendment being precluded by the terms of the draft, it remained only to fill in certain blanks, and, by signing, to transform the project of convention, elaborated in September, 1885, into a definitive diplomatic act. The place of the next meeting of the delegates of the Union was unanimously fixed at Paris, and the time, to be named by the French Government and the bureau of the Union, not sooner than four years or exceeding six years from date of ratification. By the terms of the convention, it must be ratified and the ratifications exchanged within one year, and it shall be put in force three months after said exchange. The bureau or international office is located at Berne, and is placed under the high authority of the superior administration of the Swiss Confederation.

In signing the definitive convention, the several states made declaration of class as follows:

  • First class, Great Britain, France, Germany, and Italy.
  • Second class, Spain.
  • Third class, Belgium, Switzerland.
  • Fifth class, Hayti.
  • Sixth class, Tunis.

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.

At the close of my remarks the president of the conference said:

The president thanks Mr. Winchester and assures him in the name of the conference that the accession of the United States would be received at any time with joy [Page 854] by all the contracting states. In regard to Article 18 of the convention to which Mr. Winchester alluded it could not exclude the United States from accession, for as a matter of fact the United States have not taken part in the convention; they have only commissioned Mr. Winchester as a delegate with limited powers, as set forth by him, to take part in the conference, not in the 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.

I have, &c.,

[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.

[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.


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.