Chargé Wilson to the Secretary of State.

No. 545.]

Sir: Referring to my dispatch, No. 541, of February 20, during the interval until the minister for foreign affairs should be prepared fully to discuss the subject, I continued, by means of three interviews with the vice-minister, to advocate a copyright arrangement.

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.

I have, etc.,

Huntington Wilson.

Chargé Wilson to the Minister for Foreign Affairs.

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.

Huntington Wilson.