No. 444.
Mr. Bayard to Major Kloss.

Sir: I have the honor to acknowledge the receipt of Colonel Frey’s note of the 21st instant, communicating to me copy of a circular note of the High Federal Council, dated 1st June, 1886, whereby the Government of the United States is invited to be represented at a conference to be held at Berne on the 6th of September next, by a delegate empowered to sign the international convention for the protection of works of literature and art, which was drawn up by the international conference assembled at Berne from the 7th to the 18th September, 1885.

The note of the honorable President of the Confederation refers to the previous invitation of the Federal Council, dated 6th November, 1885, which was communicated to me with your note of the 24th December of that year, in which the views of the Government of the United States were solicited—touching its participation in the proposed international conference for the purpose of adopting the suggested measure for the general protection of literary and artistic property.

The important question of international copyright has been before the Congress of the United States for several years, and a legislative measure is there pending, which will authorize the conclusion of international treaties on the subject. The matter has not advanced far enough in the legislative channel to enable the Executive to act with the desirable knowledge that the course it might adopt would be likely to agree with the views of Congress. Moreover, the Constitution of the United States enumerates among the powers expressly reserved to Congress that to “Promote the progress of science and the useful arts by securing for limited times 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 rests with the legislative rather than the treaty-making power. Copyrights and patents are on the same footing of regulation by Federal legislation, and the Executive branch of this Government cannot be unmindful that the Senate has only recently withheld its advice and consent from an international convention for the protection of industrial property, which modified and [Page 862] enlarged for the benefit of foreigners the municipal laws of the United States in regard to patents.

All these considerations have necessarily deferred a reply to the invitation of the High Federal Council of November 6, 1885, and the continued pendency of measures in Congress makes it, as yet, impracticable for the United States to depute a plenipotentiary to attend the forthcoming conference at Berne for the purpose of signing the proposed international copyright convention.

The attitude of this Government toward the project is merely of expediency and reserve. In principle, it favors the plan, but without determinate views as to the shape it should assume, and is at present unprepared to suggest modifications which might conform the convention to the legislation which Congress may hereafter deem appropriate. Without feeling authorized to join in the proposed convention as a full signatory, we do not thereby wish to be understood as opposing the measure in any way; on the contrary, the Government of the United States reserve, and without prejudice, the privilege of future accession to the international convention should it become expedient and practicable to do so, under the 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 be admitted to accede thereto on their request to that effect.

To exhibit its benevolence toward the principle involved, the Government of the United States will take pleasure in instructing its representive at Berne, Mr. Boyd Winchester, to attend as a delegate the conference of September next under the reserve herein indicated.

Mr. Winchester will not be empowered to sign the international convention on behalf of the United States, but he will be authorized and instructed to declare to the Conference that the United States, not being parties to the proposed convention, reserve their privilege of future accession under article 18 thereof.

Accept, sir, &c.,