On the 7th instant, the minister for foreign affairs at length stating
his preparedness to enter more fully into the discussion of copyright, I
had with him a long conversation.
Finding evidence of a disposition to continue, as formerly, on behalf of
the department of education, under which copyright matters are said to
be, to deny to Americans the protection of copyright to which justice
entitles them, I deemed it necessary more strongly to present the
matter.
Herewith I have the honor to inclose a copy of my note No. 267, dated
March 11, formally requesting, on behalf of the United States
Government, that the Japanese Government agree to make a convention
securing to both nations national or most-favored-nation treatment in
copyright.
[Inclosure.]
Chargé Wilson
to the Minister for Foreign
Affairs.
Legation of the United States,
Tokio, March 11, 1901.
No. 267.]
The undersigned, chargé d’affaires of the United States, had the
honor last month to state to his excellency His Imperial Japanese
Majesty’s minister for foreign affairs the proposition of the United
States Government that a copyright convention be concluded between
the United States and Japan. Since then he has had three
conversations with Mr. Uchida, the vice-minister. On the 7th instant
he had the honor more fully to discuss the subject with his
excellency the minister. Referring to those conversations, from
which the undersigned entertains the expectation that the wishes of
his Government will be met in this matter, and deeming it now
advisable to set down in writing the [Page 972] considerations to which he has had the honor to
draw his excellency’s attention, the undersigned charge d’affaires
of the United States has the honor to invite the attention of his,
excellency His Imperial Japanese Majesty’s minister for foreign
affairs to the following:
The Government of the United States of America desire to make with
the Government of His Majesty the Emperor of Japan a reciprocal
arrangement by which citizens of the United States and subjects of
His Majesty the Emperor of Japan shall enjoy in both countries full
protection for their literary and artistic property.
The Government of the United States has copyright arrangements
according reciprocal national treatment with France, Great Britain,
Germany, Switzerland, Italy, Denmark, Portugal, Spain, Mexico,
Chile, Costa Rica, the Netherlands, and others.
The Imperial Japanese Government have, by joining the Berne
convention of 1886, extended full copyright protection to all the
signatory powers of that convention.
Moreover, quite irrespective of the Berne convention by Article XI of
their treaty with Switzerland, the Imperial Japanese Government have
extended national treatment in copyright, reciprocally, to Swiss
citizens.
From these facts it is evident that the two Governments hold in
common that high principle of justice upon which it is their aim to
protect writers and authors in the enjoyment of their literary and
artistic property.
In that Article XXVIII of the copyright law of Japan provides that
foreigners, if their copyright protection be not specially
determined by a treaty, shall enjoy the protection of the law only
upon the condition of first publication in Japan, the circumstances
for reciprocal national treatment between the United States and
Japan do not immediately exist.
Happily, however, Article XXVIII, above referred to, clearly
contemplates the removal of any nationality from the category to
which the condition of first publication in Japan applies, by means
of a treaty or convention between Japan and the Government of that
nationality, the conclusion of which, ipso facto, makes that
condition inapplicable—as it is also in the case of Japanese
subjects, and of the citizens or subjects of the very great number
of powers to which the full protection of the Japanese copyright law
is now extended by treaty or convention.
It may be mentioned that the German copyright law extends its
protection to foreigners upon the condition of their works being
published by editors having their commercial residence in German
territory, and thus presented a similar and corresponding obstacle
to immediate reciprocal national treatment between the United States
and the German Empire. The German Government readily obviated the
difficulty by concluding with the United States the convention of
1896, securing reciprocal national treatment in copyright to the
citizens and subjects of the United States and of the German
Empire.
It is evident that such a convention between the United States and
Japan would remove the difficulty in this case. And it can not be
doubted that the desirability of terminating the present inequitable
situation by concluding such a convention will at once appeal to the
recognized high sense of justice of the Government of His Majesty
the Emperor of Japan.
It is hoped that the arrangement suggested will be considered on
broad principles of international justice, although its equity can
equally be maintained from other points of view.
If any question of the equivalence of the quid pro quo should
possibly suggest itself, it may be noticed as a significant fact
that all the above powers, many of them signatories of the Berne
convention, and some of them having vast literary interests in
America, have considered as satisfactory in return for national
treatment in their dominions the treatment now offered to Japan by
the United States.
Further, in touching upon the general matter of quid pro quo, Japan’s
convention of April 26, 1900, with Great Britain may, among other
conventional arrangements, be noted. That convention, in
reciprocally providing for the administration by British consular
officers of the estates of British subjects deceased in Japan,
changes the application of Japanese law to British subjects in
important matters of property. It is evident that, owing to the
comparatively very large number of British subjects resident in
Japan, in this case the actual value of the convention to the two
countries is far from equal. The same may be said to a greater or
less degree of the corresponding arrangements reached with Germany,
Belgium, and others.
[Page 973]
Again, by the convention which has just been concluded, Japan is to
extend to Spain most-favored-nation treatment as to the tariff, thus
modifying the revenue laws (certainly laws of the highest auhority)
in favor of that country.
Further, it is observed that the fact that Germany is not a party to
the convention of 1883, to which Japan is a signatory power, has not
been permitted to deprive German industrial property of protection
in Japan, such protection having been amply afforded by section 4 of
the protocol signed at Berlin on April 4, 1896. Thus such
differentiation as is now complained of by the United States in the
matter of copyright was removed in the case of Germany in a matter
of equal importance to that country.
That the Government of the United States took a foremost part in
facilitating and hastening treaty revision is no doubt remembered.
Their evident motives in pursuing that course and in signing their
treaty—a treaty without a tariff—at so early a date were of course
such as to preclude the possibility of delaying to provide for every
detail. These circumstances, as also Articles I and XIV, and,
indeed, the whole spirit of the treaty of 1894, show beyond a doubt
and amply justify the American Government’s confident expectation
that they could rely upon the Imperial Japanese Government to extend
to them, at the least, no less favorable treatment than might be
extended to any other power. And it would be a source of great
regret and disappointment to the Government of the United States
should it be found that the United States, alone among all the
powers, is the only power to which copyright protecton is refused by
the Imperial Japanese Government.
The undersigned chargé d’affaires has the honor to request, in the
name of the Government of the United States of America, that the
Government of His Majesty the Emperor of Japan agree to conclude a
convention securing to the citizens and subjects of the two
countries reciprocal national or most-favored-nation treatment in
copyright.
Having indicated above some of the facts which lead him to transmit
this very just request of his Government’s in the fullest
expectation that it can not but be willingly granted, the charge
d’affaires of the United States avails himself of this occasion to
renew to his excellency, His Imperial Japanese Majesty’s minister
for foreign affairs the assurances of his highest consideration.