Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1906, (In two parts), Part II
Chargé Wilson to the Secretary of State.
Tokio, Japan, May 20, 1901.
Sir: Referring to previous correspondence on the subject of copyright, I have the honor to inclose a copy of a letter dated March 25, by which the minister for foreign affairs acknowledged the receipt of my note of the 11th.
On April 6, in the hope of hastening the consummation of the desired copyright convention, I addressed a letter to Mr. Kato, emphasizing the importance of the matter, and requesting that it receive attention with as little delay as the convenience of his Government would permit. A copy of the letter is inclosed.
A copy of Mr. Kato’s letter of the 13th ultimo, in acknowledgment of mine, is sent herewith.
On the 17th instant Mr. Kato replied unfavorably to my note. A copy of his communication is inclosed.
I have the honor to forward herewith, also, a copy of a note which I to-day addressed to the minister for foreign affairs, again presenting the request of the American Government.
During the interval since March 11 I have had a great many conversations on this subject with the minister and the vice-minister for foreign affairs.
In this connection I beg to acknowledge the receipt of your instruction No. 345 of the 15th ultimo, inclosing a copy of a letter from the Librarian of Congress, in which he expresses his views on the subject of copyright relations between America and Japan.
I have, etc.,
The Minister for Foreign Affairs to Chargé Wilson.
Tokyo, March 25, 1901.
Sir: I beg to acknowledge the receipt of your note dated the 11th instant, expressing in full the desires of the Government of the United States to conclude [Page 975] with the Imperial Government of Japan a convention securing to the citizens and subjects of the two countries reciprocal national or most-favored-nation treatment in copyright. I hasten to state in reply that the matter has at once been referred to the authorities concerned.
Minister for Foreign Affairs.
Chargé Wilson to the Minister for Foreign Affairs.
Tokyo, April 6, 1901.
Monsieur le Ministre: After careful verbal representations made to your excellency in person, as also through the vice-minister, during the month ended March 11, I had the honor, in my note of that date, again fully to present the request of the American Government that the Imperial Japanese Government consent to conclude with them a copyright convention according reciprocal national or most-favored-nation treatment to both nations.
The very important question which arises from a consideration of this request of the American Government—namely, that of the relative position in which the United States are to be placed, or, in other words, of whether they are to be discriminated against—would seem to be a simple one certainly, and, I trust, one very easy of solution.
Again, the subject of copyright does not appear to be so broad a one as to lead one to expect that more than a very short time indeed would be necessary for the consideration of such—in this case—comparatively vastly subordinate questions as might arise from it.
In view of the grave importance of the principle involved, it is greatly to be desired that I be enabled, with as little further delay as may be, to telegraph to the Secretary of State the answer of your excellency’s Government.
I therefore have the honor earnestly to request that your excellency be good enough to take what steps may be necessary in order that the favorable reply which can not but be anticipated to this request of my Government may be sent me at as early a date as the convenience of your excellency’s Government may possibly permit.
I avail myself, etc.,
The Minister for Foreign Affairs to Chargé Wilson.
Tokyo, April 13, 1901.
Sir: I beg to acknowledge the receipt of your note dated the 6th instant in which, referring to your note of the 11th ultimo relative to the protection of copyright, the receipt of which was acknowledged in my note of the 25th of the same month, you desire to be informed as early as possible whether the Imperial Government are disposed to comply with the request of the Government of the United States to conclude a copyright convention.
While in deference to your wishes I have communicated your request to the authorities concerned, it will be understood that in regard to the matter full investigations have to be carried out according as are deemed necessary in the judgment of the Imperial Government, and I regret to state that they are not in a position to unduly precipitate such investigations which will naturally require a reasonable length of time. In your note under reply it seems to be assumed that the citizens of the United States are now receiving in Japan a discriminatory treatment in regard to copyright protection. On this point I beg to say that, setting aside the question of the protection accorded under the Berne convention to the subjects and citizens of the powers that have signified their adhesion to that convention, the protection afforded by the Imperial Government, independently of that convention, to the copyright of foreigners is provided for in Article XXVIII of the copyright law and no wise varies with the nationality of the copyright holders.
Accept, sir, etc.,
Minister for Foreign Affairs.
The Minister for Foreign Affairs to Chargé Wilson.
Tokyo, May 17, 1901.
Sir: In your note of the 11th March last you refer to Article XXVIII of the copyright law of Japan, which provides that the subjects or citizens of the powers having no special convention with the Empire in respect to copyright shall enjoy the protection of the law only upon the condition of first publication in Japan. Consequently the citizens of the United States not being placed in an equal position with the subjects of Japan in regard to the protection of copyright, it is desired by the Government of the United States to conclude with the Imperial Government a convention securing to the subjects and citizens of the two countries reciprocal national or most-favored-nation treatment in respect to copyright.
The matter was at once referred to the authorities concerned, as stated in my note of the 25th March last, and being now in receipt of a reply from them, I beg to acquaint you with the views of the Imperial Government respecting the proposal of the United States Government.
Section 3 of the act of Congress of the United States, approved March 3, 1891, relating to copyrights, makes it a condition precedent to the enjoyment of copyright protection that the works for which copyright is desired be printed from type set within the limits of the United States, or by reproductive arrangement prepared therefrom within the limits of that country. Accordingly if a convention were to be concluded on the lines suggested by your Government, the subjects of Japan would have to carry out the entire process of production within the limits of the United States in order to enjoy copyright protection, while the citizens of the United States would be enabled to enjoy protection for their works printed without the limits of the Empire of Japan. It will consequently be seen that such a convention, although having as its object reciprocal protection of copyright, would, nevertheless, wholly disregard the principle of equal treatment. Section 3 of the American act relating to copyright and Article XXVIII of the existing copyright law of Japan are framed on nearly identical lines, and therefore, should the desired convention be concluded between the two countries, the copyright protection which the subjects of Japan would then enjoy in the United States would, practically speaking, accord with the copyright protection which the citizens of the United States now enjoy under the existing laws of Japan.
Article XI of the treaty of amity, establishment, and commerce between Japan and Switzerland having, independently of the Berne convention, reciprocally extended national treatment with regard to the protection of literary and artistic works, you refer to that article in support of the proposal of the Government of the United States. It is desired, you intimate, that, as a special arrangement already exists between Japan and Switzerland, so in the same way a special arrangement may be concluded between Japan and the United States, although the latter have not adhered to the convention of Berne. It may, however, be observed that the stipulation in Aricle XI of that treaty has been framed having in view the position held by the Government of Switzerland with respect to the Berne convention and having in contemplation the decision of the Imperial Government to join that convention. It has, therefore, created no special treatment in favor of any state that has not joined the said convention.
While I regret to have to inform you that the Imperial Government are not prepared to enter into any special agreement beside the international convention above referred to, I trust it will be understood that the inability on the part of the Imperial Government to meet the wishes of the United States arises not from any disinclination to extend to the citizens of the United States whatever advantages that may have been granted to the subjects or citizens of any other power, but results solely from the limitations imposed by the laws of the United States.
Accept, sir, etc.,
Minister for Foreign Affairs.
Chargé Wilson to the Minister for Foreign Affairs.
Tokyo, Japan, May 20, 1901.
The undersigned chargé d’affaires of the United States has the honor to acknowledge the receipt of the letter which his excellency His Imperial Japanese Majesty’s minister for foreign affairs was good enough to address to him on the 17th instant.
Having received a statement from the department especially concerned with the subject of copyright, his excellency therein communicated to the undersigned the Imperial Japanese Government’s views with regard to some of the considerations cited in support of the proposal which he had the honor to make on behalf of his Government in his note of March 11th—that is, that a copyright convention mutually according national or most-favored-nation treatment be made between the United States and Japan.
It can not be but with great surprise that the Government of the United States will learn that the Imperial Japanese Government have any hesitation in consenting to the convention.
While the undersigned will forward to the Secretary of State a copy of his excellency’s letter under reply, he must at the same time assure his excellency that he can not regard the views therein expressed as diminishing the force of the representations which he has already had the honor to make, and that there is no doubt but that the present reply can not possibly be acceptable to the United States.
In deference to the wishes expressed by the minister for foreign affairs in the conversation which the American chargé d’affaires had the honor to hold with his excellency on the 25th ultimo—when the undersigned verbally expressed his inability to agree with the statements contained in his excellency’s letter of April 13—he has continued to postpone further discussion of the subject until his excellency should have replied to his note.
That time having now arrived, the undersigned must hasten again earnestly to invite his excellency’s attention to this very important matter.
His excellency states that the Imperial Japanese Government’s objections to the desired convention rest solely upon the limitations imposed by the copyright law of the United States, thus basing them upon the ground that the American law would be unfavorable to Japanese literary and artistic interests in America.
The undersigned is confident that, from the following considerations among others, his excellency will not fail to agree with him that, in practice, such would not be the case.
In order to be in danger of “piracy” in the United States—which danger alone gives rise to the need of copyright protection—Japanese literary and artistic property must, necessarily, have a very large market in America.
In all such cases, then, since the American import duty is 25 per cent on books, and correspondingly high on prints, et cetera, it is evident that Japanese subjects interested in such properties would for economical reasons comply of their own accord with the provisions of the American law, which would thus inflict no hardship.
Owing to the striking difference in the principles of their application, it can not be admitted that section 3 of the American act of 1891 and Article XXVIII of the copyright law of Japan are framed on nearly identical lines.
The treatment offered, under the American act, to Japanese subjects, if the convention be made, is the same that is offered to Americans, and the same, too, that is offered to, and has been found acceptable by, practically all the other powers.
Japan now offers to the United States treatment not only less favorable than national treatment, but treatment less favorable than that offered by her to the other powers.
The undersigned had the honor to mention Article XI of the Japan-Switzerland treaty (as having to do with copyright)—among the number of special arrangements by which various advantages have been given to different powers other than the United States—all of which cases are parallel, so far as concerns considerations of relative quid pro quo, to the case of the convention desired by America.
[Page 978]The undersigned can by no means perceive that Article XI above referred to has not created a special treatment independently of the Berne convention, since that article stands alone in a treaty which, makes no reference to the convention, and would evidently remain effective should either or both of the signatories withdraw from the convention.
In his note of March 11 the undersigned had the honor to call his excellency’s attention to the evident and very natural expectation of the United States that they would receive from the Imperial Japanese Government, in copyright as in other matters, at least as favorable treatment as any other power.
The generous tone of all the communications on this and kindred subjects which his excellency’s distinguished predecessors, Count Inouye, Count Okuma, and others addressed to this legation during the years of treaty revision, show plainly that the Imperial Japanese Government shared that expectation.
In the correspondence during those years, from 1885 forward, his excellency’s predecessors were unanimous in deprecating as objectionable the practice of unauthorized reprinting.
The Imperial Japanese Government did not fail to exert every means then at their command, by instructions to the local authorities and in other ways, to discourage and restrain the infringement of American copyrights—always looking forward to the time when treaty revision, by removing the obstacle then arising from the matter of jurisdiction, would make it possible for them to afford full protection.
Count Okuma, for example, in writing to Mr. Hubbard on March 24, 1888, spoke of the impossibility of the Imperial Japanese Government’s providing full coypright protection by law “until they should, availing themselves of a future opportunity, conclude a formal convention on the subject with the United States and other treaty powers.”
It is clear that the Imperial Japanese Government have considered, as the Government of the United States have always done, that the extension by Japan of copyright protection to foreigners was to be one of the numerous innovations which were to accompany and be complementary to treaty revision.
In connection with treaty revision, after as well as before the signature of the treaty between America and Japan, a solicitude to give American interests favorable treatment was invariably emphasized by his excellency’s predecessors.
Under the circumstances, the undersigned can not for a moment permit himself to believe that the Imperial Japanese Government would wish to leave the United States, in the matter of copyright protection, in the present isolated and unfavorable position.
He can not, moreover, entertain any doubt but that, when they shall have considered the matter in all its broad phases, the Imperial Japanese Government will be convinced of the desirability, from every point of view of justice, of acceding to the request of the American Government, which the undersigned now has the honor again to present.
The undersigned chargé 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 most distinguished consideration.