Mr. Adee to Mr. Merry.
Washington , September 15, 1899 .
Sir: I have to acknowledge the receipt of your dispatch No. 305 of the 30th ultimo, with which you forward a decree which was to be published on September 4 by the Government of Costa Rica establishing international copyright between that Republic and the United States.
It appears from the text of this decree, dated August 26, 1899, that “in view of the final article of the law of June 26, 1896, regarding literary proprietorship which provides a condition identical with that established by the law of the United States” it is decreed that “from the 4th of September of the present year the North American citizens residing outside of Costa Rica shall enjoy in this Republic the rights of literary ownership that the law referred to of June 26 establishes, on the understanding that on that date a similar order will have been given by the Government of the United States of North America with respect to the Costa Rican citizens who do not reside in that country.”
Did this decree stand alone it would not fulfill the first condition established by the copyright law of the United States, act of March 3, 1891, to wit, that the act shall apply to the citizens or subjects of a foreign state or nation “when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens.” This condition requires the President to ascertain the actual existence in the foreign state of law or regulation according to citizens of the United States the benefit of copyright on substantially the same basis as to the citizens of such foreign state. It does not authorize the President to enter into reciprocal or conditional negotiation with such foreign state to the end of establishing equivalence of treatment in the two countries, which appears to be the purpose invited by the decree you now send.[Page 586]
Negotiations with other governments in the past looking to the concession to their citizens or subjects of copyright privileges in the United States, by virtue of a proclamation of the President, in accordance with the terms of the act of March 3, 1891, have in several instances been complicated by the apparent desire of the other party to enter into an especial reciprocal engagement whereby the concessions granted by each should be in consideration for like concession similarly granted by the other It was not until the misunderstanding in this regard had been removed and this Government had obtained from the foreign Government an explicit declaration that its own law permitted to citizens of the United States of America the benefit of copyright on the same basis as its own citizens that the President found it possible to issue his proclamation.
Turning from the Costa Rican decree of August 26 to the Costa Rican copyright act of June 26, 1896 (not July 26, 1895, as erroneously translated by you), the final article is found to read thus:
Foreigners residing outside of the country shall enjoy in Costa Rica the same rights which this law establishes for natives of the country and for foreigners residing in the Republic, provided that the laws of their own nation grant equal privileges to Costa Ricans.
This statutory provision would appear to enable the Government of the United States to act independently of the condition or so-called understanding (inteligencia) that the Government of the United States of America shall, upon the 4th of September of the present year, issue a similar order with respect to Costa Rican citizens not residing in the United States.
As above explained, the act of March 3, 1891, does not contemplate entrance into a reciprocal engagement of this character, but the final section of the Costa Rican act of June 26, 1896, might, for the purpose of our act of March 3, 1891, be assumed to be communicated to this Government by that of Costa Rica through the reference contained in the decree you now transmit, and thereby to be tantamount to a declaration on the part of that Government that Costa Rica “permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens.”
This assumption is the more convenient inasmuch as the law of the United States draws no distinction between the alien residing in the United States and an alien not residing in the United States. To take the Costa Rican law and later decree conjointly as the basis of the President’s action might serve to remove the limitation which the text of the decree appears to assign to the enjoyment by American citizens of the privileges of copyright in Costa Rica. Were the decree to be accepted as the sole basis it would limit the enjoyment of copyright to American citizens residing outside of Costa Rica, and would apparently exclude American citizens residing in Costa Rica, which is obviously not its intent.
To understand the true right of American citizens in the matter it is necessary to go back to the Costa Rican law of June 26, 1896, which on examination appears to contain no qualification or restriction of the right of registry and copyright to any person residing in Costa Rica.
It would appear desirable, before actually issuing the President’s proclamation in the form shown on the last page of the Department’s circular of July 25, 1899, heretofore sent to you, that you should obtain from the minister of foreign affairs confirmation of the Department’s assumption that the Costa Rican law of June 26, 1896, does in fact grant, without restriction to American citizens residing in [Page 587] Costa Rica, the same privileges as are enjoyed by Costa Rican citizens, and that the extension of this right to citizens of the United States not residing in Costa Rica will follow the issuance of the President’s proclamation.
Upon satisfactory reply being received from you, the President’s proclamation in the premises will issue.
I am, etc.,