Part 9 (1/2)

(The decision referred to is as follows:)

UNITED STATES CIRCUIT COURT OF APPEALS, SECOND CIRCUIT.

White-Smith Music Publis.h.i.+ng Company, appellant, against Apollo Company, respondent.

Judges Lacombe, c.o.xe, and Townsend.

These causes come here upon appeal from a decree of the United States circuit court for the southern district of New York dismissing bill alleging infringement of copyright. The facts are stated in the opinion of the court below. (139 Fed. 427.)

Per curiam: The questions raised in these cases are of vast importance and involve far-reaching results. They have been exhaustively discussed in the clear and forcible briefs and arguments of counsel. We are of the opinion that the rights sought to be protected by these suits belong to the same cla.s.s as those covered by the specific provisions of the copyright statutes, and that the reasons which led to the pa.s.sage of said statutes apply with great force to the protection of rights of copyright against such an appropriation of the fruits of an author's conception as results from the acts of defendant.

But in view of the fact that the law of copyright is a creature of statute and is not declaratory of the common law and that it confers distinctive and limited rights, which did not exist at the common law, we are constrained to hold that it must be strictly construed and that we are not at liberty to extend its provisions, either by resort to equitable considerations or to a strained interpretation of the terms of the statute.

We are therefore of the opinion that a perforated paper roll, such as is manufactured by defendant, is not a copy of complainant's staff notation, for the following reasons:

It is not a copy in fact; it is not designed to be read or actually used in reading music as the original staff notation is; and the claim that it may be read, which is practically disproved by the great preponderance of evidence, even if true, would establish merely a theory or possibility of use, as distinguished from an actual use. The argument that because the roll is a notation or record of the music, it is, therefore, a copy, would apply to the disk of the phonograph or the barrel of the organ, which, it must be admitted, are not copies of the sheet music. The perforation in the rolls are not a varied form of symbols subst.i.tuted for the symbols used by the author. They are mere adjuncts of a valve mechanism in a machine. In fact, the machine, or musical playing device, is the thing which appropriates the author's property and publishes it by producing the musical sounds, thus conveying the author's composition to the public.

The decree is affirmed, with costs.

Mr. OLIN. The second extension or modification of the present rights of the copyright proprietor as against the public are those instances mentioned yesterday by the chairman of the House committee in regard to the exceptions to the prohibition of importation. As the law stands to-day the importation into this country of a book which is copyrighted here is prohibited, and there are certain exceptions, in the first case, of certain libraries and colleges who may import not exceeding two copies in one invoice, and individuals who may import not exceeding two copies in one invoice. This bill makes a modification of the present rule.

I would like to call the attention of the committee to the reason why the present law is as it is, and the reason why this suggestion of amendment is made. Of course, prior to 1891 there was nothing like this in the law. The law was perfectly simple, and had been perfectly simple for a hundred years. There could be no importation of the copyrighted article from abroad without the consent of the copyright proprietor.

With his consent it could be freely imported. So far as I know there had never been the slightest dissatisfaction on the part of copyright proprietors or of the public with the working of that rule. As a matter of fact, it was to the interest of the copyright proprietor to bring in, I will say, the English edition of the book which he was publis.h.i.+ng here, and to sell it--and so far as the public wanted it they always got it--at his shop or at other shops, through the regular channels of trade, so that the public and he alike were perfectly satisfied.

Mr. CURRIER. Were there any importations before 1881?

Mr. OLIN. Before 1891? I think there were.

Mr. CURRIER. With the consent of the copyright proprietor?

Mr. OLIN. I think, as a matter of fact, if you went into a bookstore you always found and could buy, at a somewhat higher price----

Mr. CURRIER. That is not the question. Were there any importations of such books?

Mr. OLIN. There were, by the copyright proprietors, who put them on sale and sold them through the trade.

Mr. CURRIER. Importations solely by the proprietor of the copyright--not by individuals?

Mr. OLIN. Yes, sir; not by individuals. Congress undertook in 1891 to do two things: First, to admit to the privileges of copyright the foreigners resident in certain countries; and, second, to require that the manufacture of copyrighted books should be by American typesetters and plate makers here in this country. And they undertook to do these things with the minimum changes in the language of the statute. They inserted a few words in one section, and then a few words in another, and both of the desired results were brought about, just as they exist to-day. Then, in the last part of the discussion in Congress, as I remember it--and I am open to correction as to the historical account--it became apparent that the typesetter was not duly protected if only those changes were made, for the reason that the copyright proprietor, having the free right to import books from abroad, might perhaps comply with the typesetting clause colorably only, in an imperfect way, and might satisfy the public demand for his books by importation of those set up and printed abroad. Therefore, at the typesetters' request, there was imposed a prohibition of importation which affected the whole world, including the copyright proprietor.

n.o.body could import books.

Mr. CURRIER. That was a perfectly satisfactory provision.

Mr. OLIN. That was a perfectly satisfactory provision, both to the copyright owner and to the typesetter; but then the general public were heard, and they said ”no;” an English edition may be better than an American edition, for one reason or another, and you must not deprive us of the privilege of getting the best books. Libraries were heard, and individuals were heard. And Congress then hit upon this expedient, which was very simple and on the whole has been very effectual.

Congress said:

But this prohibition shall not apply in the cases mentioned in certain specified sections referred to of the tariff act.

The sections of the tariff act referred to enumerated a certain number of cla.s.ses which Congress had thought were worthy of benefit from the Government to the extent of allowing them to import books in limited numbers free from duty. So there was ready-made for the hands of Congress a certain list of people who import books who might be allowed to benefit at the expense of the copyright proprietor, just as they had been theretofore benefited at the expense of the customs.