Max M. Kampelman *

The United States and International Copyright


The American Journal of International Law 41 (2)

April 1947, 406-429


The word “copyright” comes from the Latin copia, which is translated as “plenty” and which means, in general, the right to make plenty or to copy.  In its specific application it means the right to multiply copies of those products of the human brain known as literature and art.  It has also been defined as “the power to determine whether the work shall be published at all, the manner in which, if published, it shall be done, and to whom.” [1]

International copyright is concerned with treaties and conventions between nations requiring the signatories to respect in their own territories the copyright of nationals of the other subscribing nations. [2]

The early historian, poet or dramatist, we are told, found his pecuniary compensation for his labors in the contributions of his audience who listened to his recital or witnessed his performance.  In early Rome the practice developed whereby an author could sell his work to a book dealer, who would then have the right to duplicate and sell the manuscript; custom in that day protected the bookseller in that transfer.  There was, however, no law of literary property.  What did exist was the development of guild or trade copyright whereby usage estopped the infringement of a bookseller’s right in a work transferred to him. [3]

The coming of the Middle Ages brought the next phase of copyright development, the practice of institutional copyright.  Most of the literature of that era was religious in character and was produced in Catholic monasteries and schools.  Profit or property rights were far from the minds of


* Member of the New York bar; Instructor in Political Science, University of Minnesota.

1 Philip Wittenberg, The Protection and Marketing of Literary Property, New York, 1937, p. 11.

   A more modern and legally accurate definition of copyright can be found in Leon H. Amdur, Copyright Law and Practice, New York, 1936, p. 5: “The exclusive right, conferred by statute, to publish, multiply, and sell copies of a work, to make transformations and modifications thereof, and to perform and otherwise represent it in public, after it has been first published; except that these ‘exclusive’ rights do not prevent others from enjoying equivalent rights in works originated by them although closely identical, and except that these rights do not, prohibit ‘fair use’ to be made of the copyrighted work.”

2. P. E. Skone James, Copinger on the Law of Copyright. London, 1936 (7th ed.), p. 255.

3. William K. Townsend, “Copyrights,” in Two Centuries Growth of American Law, New York, 1901, p. 422.


the creators of such literature.  Their interest lay rather in the wide diffusion of “religious truth” for the “greater glory of God”  The Church was deeply interested, however, in rare or authentic manuscripts, and, therefore, established the practice of charging fees for the use of those works, which fees, in turn, went to the monasteries.  It is this practice which is referred to by institutional copyright. [4]

Our modern concept of copyright did not arise until about 1450, with the invention of printing and the realization by authors that their reading audience would now be enlarged and that they now had a real financial interest in their works.  Apparently the first copyright ever granted by law was that conferred by a decree of the Senate of Venice in 1469, declaring that one John of Spira should have the exclusive privilege for a period of seven years of printing the letters of Cicero and Pliny.  The decree was operative only in the territory of the Venetian republic and, it is well for us to note, did not prevent others, elsewhere in Italy, from copying the works of the original editor-publisher and making profit at his expense. [5]

In the course of the three centuries that followed, the protection granted to a special individual soon broadened into a right which any citizen could obtain by complying with certain formalities prescribed by custom or statute; the territory in which the protection was valid was extended from a city to a whole nation and the time period of protection expanded.

Finally, in 1710, we have the actual roots of modern copyright legislation with the passage of the (British) Act of Anne, the first copyright law the world has known. [6] The provisions of the statute granted copyright for 21 years for works then in existence and 14 years for works published after April 10, 1710, with a right of renewal for 14 years during the lifetime of the author; before the copyright could be recognized registration at Stationer’s Hall in London was required, a printed notice of the copyright in the book as a public notification, and the deposit of certain copies of the book in the Royal Library and in certain universities.  Other nations in Europe and, as we shall see, in the United States, soon passed similar legislation.

The first copyright statute to be enacted in the United States was adopted in Connecticut in January, 1783, “An Act for the Encouragement of Literature and Genius”.  There had been a growing demand in the Colonies for such legislation and, in the previous year, a memorial had been presented to Congress petitioning it to recommend the enactment of copyright law in the several States.  Such a resolution was passed on May 7, 1783, but before then, Dr. Noah Webster, who “had just completed his well‑

4. Leon Whipple, “Copyright,” in Encyclopaedia of the Social Sciences, New York, 1931, Vol. 4, p. 401.

5. Brander Matthews, “Twenty Years of International Copyright,” in The American Review of Reviews, Vol. 43 (1911), p. 721.

6.  8 Anne c. 19.


known spelling book and was concerned to secure protection for this work throughout the various States of the Union,” was directly instrumental in securing action by the General Court of Connecticut. [7]

Interestingly enough, the nationalism which has served to characterise American copyright legislation down to the present day manifested itself in that early statute with the provision that statutory protection to “every author” included only authors who were citizens of Connecticut and not an author “residing in or inhabitant of any other of the United States.” [8]  Other states quickly followed suit and by 1786 all the States but Delaware had passed copyright legislation. [9]

The crystallization of American copyright law finally occurred in 1789 with the adoption of the Constitution and the provision that “The Congress shall have power .... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” [10]  This provision was necessary because the laws of the several States were limited in operation to their respective boundaries with the result that if an author in one State desired protection for his work throughout the other States he was obliged to comply with a multitude of laws.

On the basis of that provision, Congress passed the first Copyright Act on May 31, 1790, [11] based on similar formalities and restrictions as that of the English Statute of Anne.  The statute is especially significant because in fundamentals the law remains much the same today, in spite of subsequent expanding legislation enacted in 1802, 1831, 1856, 1865, and 1870. [12]   The protection, however, was afforded only to American authors or residents for books printed on American-made paper from type set by American printers.  Today there are no State statutes in the field of copyright and the courts have interpreted federal power to be exclusive.  “Copyright is the creature of the Federal State passed in the exercise of the powers vested in Congress.” [13]

The English Statute of Anne of 1710 and subsequent legislation in this country led to quite an intense difference of opinion in legal circles as to whether copyright was protected under common law.  Did the right to

7. Thorvald Solberg, “Copyright Law Reform,” in Yale Law Journal, Vol. 35, No. 1 (November 1925), p. 48.

8. Thorvald Solberg, “Copyright Reform,” in Notre Dame Lawyer, Vol. 14, No. 4 (May 1939), p. 354.

9. Massachusetts: March 17, 1783; Maryland: April 21, 1783; New Jersey: May 27, 1783; New Hampshire: November 7, 1783; Rhode Island: December, 1783; Pennsyl­vania: March 15, 1784; South Carolina: March 26, 1784; Virginia: October, 1785; North Carolina: November 19, 1785; Georgia: February 3, 1786; New York: April 29, 1786.

10.  Article I, Section 8, Clause 8.

11. 1 Statutes at Large 124.

12. 2 St. L. 171; 4 St. L. 436; 11 St. L. 138; 13 St. L. 540; 16 St. L. 212.

13. Fox Film Co. vs. Doyal, 286 U. S. 123, 127; 52 Silo Ct. 546. (1932).


literary property depend on statutory protection and hence was it limited to the confines of the statute?  Or was the author’s right in his property guaranteed by common law custom and precedent and hence did it exist beyond the limitations of statute?

In the earliest case to deal with the question, Millar v. Taylor,14 1769, an English court held that common law gave authors a perpetual and sole right to their works.  Furthermore, the court held that the right was not lost by publication nor by the passage of the Statute of Anne, which was merely cumulative in effect and not destructive. [15]

It seems fairly clear, however, that this judicial concept did not extend to these shores.  When the Constitution provided that Congress might grant the exclusive privilege of publication for “limited Times,” it thereby rejected the theory of perpetual copyright and the Supreme Court, in Wheaton v. Peters, 1834, refused to follow the Millar decision. [16]   “Congress did not sanction an existing right, but created a new one,” said the Supreme Court again in 1907. [17]

Neither did this view remain in effect in England for very long.  As early as 1774 the House of Lords held that, instead of giving additional sanction to rights already held, the Statute of Anne substituted a new and lesser right, with the result, according to one scholar, that “Literary and like property... lost the character of copy-right, and became the subject of copy-privilege, depending on legal enactment for the security of the private owner.” [18]   This interpretation was firmly established by the House of Lords again in the case of Jefferys v. Boosey, 1854. [19]

This statutory theory helps us understand the purpose of protecting literary property.  Statutes are passed to protect the author upon publication, for it was thought that “the act of publication when voluntarily done by the author himself is virtually and necessarily a gift to the public.” [20]   But the welfare of the author, it must be understood, is not necessarily the desired end; rather it is that the public should thereby benefit.  “A monopoly in the author was regarded as a means to that end; it was emphatically not an end in itself.” [21]

Support for this view was given by a Congressional committee which investigated the problem of copyright in 1909:

The Constitution… provides that Congress shall have the power to grant such rights… (it is) not primarily for the benefit of the

14.  4 Burr. 2303.

15. W. P. Holcombe, “International Copyright” in Law Students Monthly, Vol. 1 (1890), p. 251.

16. 8 Peters 591.

17. American Tobacco Co. vs. Werkmeister, 207 U. S. 284, 291; 28 Sup. Ct. 72, 77.

18. Richard Rogers Bowker, Copyright: Its History and Law, Boston, 1912, p. 7.

19. 4 H. L. C. 815.

20. Holcombe, p. 252.

21 Wallace McClure, “Copyright in War and Peace” in this JOURNAL, Vol. 36 (1942), p. 383.


authors, but primarily for the benefit of the public (that), such rights are given.  Not that any particular class of citizen, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention to give some bonus to authors and inventors. [22]

With each nation going its own way in copyright legislation and with an increase of intercourse and communication between nations, the practice of “international piracy” developed.  Publishers reprinted and translated works of authors of other nationalities without permission or financial remuneration.

The first country to see the need of rejecting the concept of national boundaries in the consideration of literary creativity was France, which, in 1793, when it was imbued with the revolutionary fervor of human brotherhood, gave equal protection in its laws to residents and non-residents alike.  In the reaction to the Revolution this liberal legislation was abandoned only to be somewhat revived again in 1852.  Denmark acted in 1828, Prussia in 1836, and England in 1837, with legislation which extended copyright protection to the nationals of those countries which entered into reciprocal arrangements.  Such reciprocal treaties characterised international copyright during the 19th century, down to 1886. [23]

Such a method of international agreement soon proved to be quite unsatisfactory, however.  Among other things, it resulted in confusion because each treaty or convention had to be considered not only with reference to the two negotiating countries but with reference as well to the other nations in existing treaty agreement with either one of the contracting parties.

Many such treaties also contained complicated registration and time requirements which had to be observed before recognition would be extended, with the result that, to all practical effects, there was little recognition.  Commenting on one such treaty between England and Spain, signed on August 11, 1880, an English law journal observed: “It is a treaty on the regular Foreign Office lines, and, like the generality of conventions between England and foreign countries, will be more or less a dead letter”. [24]

Meanwhile the literary men themselves, led by Victor Hugo, had transcended national boundaries and, at 1878, in Paris, organized themselves into an International Literary Association (Association Litteraire et Artistique Internationale) to meet annually at various European capitals in

22. House Report No. 2222, 60th Congress, 2nd Session, February 29, 1909.

23. G. Herbert Thring, “United States Copyright Law and International Relations,” in The North American Review, Vol. 181 (1905), p. 72.  During this period France entered into 29 such treaties, Great Britain 15, Italy 10, Spain 7, Belgium 6, Bolivia 6, Germany 6, Switzerland 5, Portugal 4, Holland 3, Luxembourg 2, Norway and Sweden 2, Russia 2, Ecuador 1, Mexico 1, and Salvador 1.

24. “The Anglo-Spanish Copyright Convention”, The Law Times, London, Vol. 70 (1881), p. 166.


order to discuss domestic and international legislation for protection of their works.

At their 1882 meeting, held in Rome, they agreed to convene a conference to be held at Bern in the following year, for the purpose of adopting a program which would serve as a basis for an international conference of states.  At the Bern conference, which met in September, 1883, a draft convention was drawn up to serve as an international agreement on copyright.

To bring the draft convention to the attention of the nations of the world the Swiss Federal Council was prevailed upon to act as an. intermediary.  On December 3, 1883, the Council addressed a circular note to all governments, signed by the President of the Swiss Confederation, inviting them to take part in a diplomatic conference on international copyright, and enclosing a report of the Bern proceedings and a draft of their proposed convention.

The note was generally well received, although the English Board of Trade first rather curtly advised the Foreign Office that “in the present state of the copyright question it would not be advisable for her Majesty’s government to be represented at the proposed Conference”.  Upon reconsideration, however, it agreed that England’s minister at Bern might attend the Conference “in a consultative capacity, and with no power to vote or to bind her Majesty’s government”. [25]

In any event the conference met on September 8-19, 1884 after President Wett of Switzerland had sent out a second appeal on June 28.  A draft convention of twenty-one articles was evolved which proposed an International Copyright Union and included the text of an additional final protocol to be submitted to each country for consideration and approval.

The Swiss Government thereupon called another conference, which met at Bern on September 7, 1885, but since not all delegates were authorized to sign for their governments, it agreed to meet again the following year.  Finally, on September 9, 1886, the formal document creating the International Copyright Union was signed by ten countries: Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia, Spain, Switzerland, and Tunis.  The United States and Japan participated in the proceedings by having observers present but did not sign.  The agreement was ratified the following year.  Eventually 16 states signed this first convention.

The delegates to the various conferences had two courses open to them.  They could have adopted the system of a uniform code for all countries joining the Union or the system of national treatment which would permit each country to apply its own laws to the works of foreigners.  The German delegates proposed that the conference aim at once at a “codification

25. H. D. Traill, “International Copyright”, in Macmillan Magazine, Vol. 54 (1886), p. 152.


regulating in a uniform manner for the whole of the proposed union”. [26]  Such an approach, however, was rejected by the delegates in view of the divergent copyright laws within the countries represented at the conference.

A mixed system was, therefore, adopted.  Every state joining the Union agreed to accord to authors who were citizens of another country belonging to the Union, and who published their works in that country, the same treatment and protection as that accorded to their own citizens, subject to the condition that the protection afforded need not exceed that given in the country where it was first published.  The delegates did observe in a supplementary statement, however, that an “international codification is in the nature of things and will be effected sooner or later”.

Toward that end also they laid the foundation for future international copyright law in establishing certain minimum rights to be enjoyed by the authors which would prevail over national legislation.  These provisions dealth with translations, reproduction of periodical articles, public presentation of dramatic and musical works, reproduction in works intended for instruction and with formalities in registration.

Finally a novel feature of the agreement was the creation of an international office, the Office of the International Union for the Protection of Literary and Artistic Works, to be placed under the administration of the Swiss Confederation.  The duties of the office included the editing of a periodical to treat questions concerning the Union and for this purpose it was to “collect all kinds of information relative to the protection of the rights of authors over their literary and artistic works”. [27]

The Union, of course, was by no means a finished body in 1887.  The International Literary Association continued to meet and to make suggestions for improvement.  One of the more significant suggestions that came out of a meeting at Dresden in 1895 was the proposal that a diplomatic congress be called to revise the Bern convention as a means of bringing about unified legislation.  They asked that the Bern office be authorized to produce an international vocabulary of the equivalent juridical terms used in the legislation texts of each country and that official translations of those laws be made available by the Office. [28]

A congress of the Union was held at Paris in 1896.  One of the most important changes coming out of the sessions was the provision that authors from non-member nations who secured first or simultaneous publication in any member country enjoyed thereby in all countries of the Union the same rights as nationals of member states.  This provision, of course, was applicable to Americans.

26. Same.

27. “The International Copyright Convention,” in The Irish Law Times and Solicitor’s Journal, Vol. 23 (1888), pp. 8-9.

28. “The 1895 Copyright Congress”, in The Nation, Vol. 61 (1895), p. 343.


American authors, as a result of the Paris provision, now had an advantage.  To copyright their works abroad they could arrange for the simultaneous publication of those works in England and their rights would thereby be protected throughout the Union.  The law in the United States, on the other hand, as we have seen, extended protection only to citizens or residents of this country and the latter required an intention to make the United States the applicant’s permanent abode.

The result was great agitation both here and abroad.  Many American publishers disregarded all codes of ethics in their search for profits by freely reprinting standard English works without paying for the right to do so.  We can better picture the furor thereby created by noting that though there are few periods in the history of English literature which are as rich as the Victorian, the chief Victorian authors reaped little or no financial reward from the fame their works achieved in this country.  The essays of Macauley, the poems of Tennyson, and the novels of Dickens were multiplied in American reprints without the consent of their authors and with little or no recognition of their right to payment.

This practice hurt American authors too for their works had to meet the unfair competition of British books which were cheaper because they were not paid for.  American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.  The same American writers also, before the changes of 1896, mentioned above, were similarly not protected in England.  Longfellow asserted a few years before his death that he had twenty-two publishers in England and Scotland, but that “only four of them took the slightest notice of my existence, even so far as to send me a copy of the book.”  Harriet Beecher Stowe too is reported to have received no return whatever, even though her Uncle Tom’s Cabin sold more than ½ million copies in Great Britain during its first year alone. [29]

American men of letters were, therefore, apart from any other considerations, unable to rely on literature for a livelihood.  Longfellow and Lowell were college professors; Hawthorne was in the government service; Emerson engaged in lecturing.  And American readers were weaned on a literature not their own.

Many people on both sides of the ocean protested this state of affairs. Maine wrote in his Popular Government: “… the neglect to exercise this power for the advantage of foreign writers has condemned the whole American community to a literary servitude unparalleled in the history of thought.” [30]   A Congressional committee, reporting on the copyright law of 1831 commented: “It is only in the most barbarous and savage coun‑

29. Brander Matthews, “Twenty Years of International Copyright”, in The American Review of Reviews, Vol. 43 (1911), p. 721.

30. Brander Matthews, “The Evolution of Copyright”, in Political Science Quarterly Vol. 5, No. 4 (December, 1890), p. 602.


tries that the inhabitants rob and plunder indiscriminately all foreigners who come upon their shores.”  [31]

The movement in the United States for international copyright protection was, therefore, not entirely lifeless, although it can hardly be said to have begun before 1836.  Even prior to that date, however, there were sporadic appeals for the copyright protection of foreign authors.  Tom Paine appears to have advocated international copyright as early as 1782.  The New York Post protested the piracy of English works by American publishers in 1810, while The Knickerbocker claimed it was the first to champion the cause. [32]

Be that as it may, the first serious attempt to get the United States to join in an international copyright agreement came in 1837 when Great Britain suggested the conclusion of a treaty on the matter.  Parliament had just enacted legislation placing foreigners on the same footing as native authors in the event of reciprocity by the nation to which the foreigner belonged and Lord Palmeston, who was negotiating for England, was anxious to include the United States in an agreement.

A committee of Congress, headed by Henry Clay and supported by Mr. Justice Story, presented a report urging that such an international convention be concluded, but strong opposition to it by book publishers led Congress to ignore the report and other attempts at legislation made by Clay in 1842, by Rufus Choate in 1843, and by John Jay in 1848, to name only a few.

To assist the advocates of international copyright legislation in this country Charles Dickens came to America in 1837.  At the expense of alienating many interests who resented his interference, he actively campaigned along the eastern seaboard and wherever he was feted.  In February, 1842, he assisted Washington Irving in drawing up and presenting a petition to Congress through Henry Clay.  But his activities were in vain and critics today maintain that his unflattering picture of America in Martin Chuzzlewit can be credited to his spleen in not obtaining an international copyright law. [33]

With legislative attempts failing, the period between 1852-60 was marked by renewed efforts to secure international copyright by treaty with England.  At the urging of the Copyright League, headed by G. P. Putnam, one of the few publishers at the time in harmony with this view, Secretary of State Edward Everett, acting through John F. Crampton, the American Minister in London, negotiated a treaty in 1853 providing for reciprocal copyright protection between this country and England.  The

31. “International Copyright”, The North American Review, Vol. 48 (1839), p. 266.

32. Andrew J. Eaton, “The American Movement for International Copyright, 1837-60”, in The Library Quarterly, Vol. 15, No. 2 (April, 1945), p. 101.

33.  Laurence H. Houtchens, “Charles Dickens and International Copyright”, in American Literature, Vol. 13 (1941), p. 28.


treaty was laid before the Senate in a message from President Fillmore on February 18, 1853, but opposition, arguing that Congress should not enhance the price of books by “taxing them for the benefit of foreign authors,” was again too powerful and the Senate tabled the proposed treaty without a vote. [34]

In 1883 the advocates of international copyright reorganized themselves into a new American Copyright League and enrolled in its ranks the majority of American writers.  Lowell became President and composed the quatraine which the League took as its motto :

In vain we call old notions fudge,

And bend our conscience to, our dealing;

The Ten Commandments will not budge,

And stealing will continue stealing.

That same year, it may be recalled, the President of the Swiss Confederation invited the governments of the world to be represented at the Bern conference on copyright.  Replying to the circular, Secretary of State Frederick T. Frelinghuysen wrote that while the United States was “disposed in principle toward the proposition… this Government sees grave difficulties in the way of a general arrangement to embrace all countries in one scheme of copyright protection.”

The reply did not express a definite intention, however, and hence elicited a program of the 1884 conference, whereupon the United States informed the Swiss President that it had not construed his letter as an invitation to send delegates and none had been appointed.  In his annual message to Congress on December 1, 1884, President Arthur explained that

The question of securing to authors, composers and artists copyright privileges in this country in return for reciprocal rights abroad is one that may justly challenge your attention.  It is true that conventions will be necessary for fully accomplishing this result, but until Congress shall by statute fix the extent to which foreign holders of copyright shall be here privileged, it has been deemed inadvisable to negotiate such conventions.  For this reason the United States were not represented at the present conference at Bern.

A copy of the Bern conference findings and suggestions for an International Copyright Union were nevertheless sent to the United States with a further invitation to attend the 1885 conference.  Secretary of State Bayard on May 21 replied that it would be very gratifying for the United States to take part in the consultative deliberations and on September 17, Boyd Winchester, American Minister to Switzerland, went as a delegate and explained the American position to the delegates present.

A report of the conference was again sent to the Secretary of State by the Swiss on November 6, together with an invitation to the conference of

34. Matthews, “Twenty Years”, p. 723.


1886, already mentioned, and a request that we name a delegate and “furnish him with the powers necessary to sign the Convention”.  Secretary Bayard, on June 29, announced that Mr. Winchester would again attend as a delegate, but that he will not be “empowered to sign the international convention” because under the United States Constitution, copyright was a legislative rather than a treaty making function of government and Congress alone could act.  Meanwhile, on December 8, 1885, in his annual message to Congress President Cleveland wrote: “The interesting and important subject of international copyright has been before you for several years.  Action is certainly desirable to effect the object in view; and while there may be question as to the relative advantage of treating it by legislation or by specific treaty, the matured views of the Bern Conference cannot fail to aid your consideration of the subject.”  [35]

Heartened by the new turn of developments, the movement for international copyright grew.  In 1887 a group of publishers formed the American Publishers’ Copyright League and joined with the authors in a campaign to enlighten public opinion and persuade Congress.  They were aided by Mr. Winchester’s report which recommended that Congress pass legislation to permit the United States to join the Union.

The first attempt came in the form of the Chace Copyright Bill which passed the Senate on May 8, 1888, but failed in the House.  Finally, on March 3, 1891, Congress passed a law to go into effect on July 1 which, under certain specified conditions, extended the privilege of copyright to subjects of states which permitted United States citizens to enjoy copyright benefits on substantially the same basis as its own citizens, or “when such foreign state or nation is a party to an international agreement which provides for reciprocity in the grant of copyright, by the terms of which agreement the United States of America may at its pleasure become a party to such agreement”. [36]   The President, under the Statute, was given the authority to issue proclamations naming those states which could be considered to be embraced by the two stipulated conditions.

It soon became clear, however, that the passage of the legislation in 1891 came far from settling the question of international copyright.  Congress, consistent with the dominant protectionist way of thinking of the day as exemplified by our tariff laws, included a provision in the statute that for a book by a foreign author to be protected, it had to be printed from type set within the United States.  Publication in this country also had to be simultaneous with its foreign publication.

This typesetting provision was compared by The Nation to a provision that no foreigner landing in the United States should be entitled to the pro‑

35. “The Problem of Copyright Revision”, in Congressional Digest, Vol. 6, No. 10 (October, 1927), pp. 263-264.

36. 26 Stat. 1106, 1110, Section 13


tection of the police and the courts until he had purchased and was actually wearing a suit of clothes made by an American tailor. [37]

Regardless of the wisdom of the provision, however, its effect was to emasculate greatly the intent of the law.

The State Department, in spite of the apparent fact that Congress had the International Copyright Union in mind, held that the “manufacturing clause” prevented membership by the United States in the Union.  We could not at our “pleasure become a party” to the Union because it gave protection in all member countries “whether such works are or are not published in one of these countries”.  We could not, therefore, enter into reciprocal agreements with members of the Union on the strength of that membership alone.  We were thus limited in our international copyright relations to the alternate stipulations of the statute. [38]

On that basis, between July 1, 1891, and August 11, 1908, Presidential proclamations granted reciprocity to: Belgium, France, Great Britain and its possessions, Switzerland, Germany, Italy, Denmark, Portugal, Spain, Mexico, Chile, Costa Rica, the Netherlands and its possessions, Cuba, Norway, and Austria.  Special treaties were also entered into with Spain, China, Japan, Guatemala, Salvador, Costa Rica, Honduras, and Nicaragua. [39]

The arrangement, however, was not too happy a one for all the parties concerned.  Opposition in Germany pointed out that we demanded a whole in exchange for a part.  Rather than the usual provision that the privileges guaranteed by a copyright convention should not exceed in one country the rights secured by that other country to its own citizens, we insisted on equal application of the respective laws.  German legislators said our law gave one of the shortest periods of protection in modern legislation and had onerous technical requirements, while their law was very liberal and required only registration as a formality. [40]

There was bitter criticism in England too.  One British commentator declared that the Anglo-American Treaty of 1893 imposed restrictions on England in the interests of the United States and pointed to our laws which made the securing of copyright by English periodicals “practically insurmountable”.  Commenting on the Chicago Graphic which reprinted selected articles from English periodicals weekly without permission or payment, he quoted from Montaigne “The law of honor seems to me far stronger and more weighty than that of legal obligation. I am throttled less tight by a lawyer than by myself”; and then pithily concluded on his own: “This is how all men of honour feel.” [41]

37. “An Apologie for Piracie”, in The Dial, Vol. 38 (1905), p. 4.

38. “Our Foreign Copyright Relations,” in The Nation, Vol. 59 (1894), p. 168.

39. Congressional Digest, as cited.

40. The Nation, Vol. 39, as cited.

41. George Bentley, “The Anglo-American Copyright Act,” in The Athenaeum, Vol. 102 (1893), p. 590.


In response to much of the criticism from within and without, Congress yielded slightly and in 1895 passed an amendment under which proprietors of foreign language books printed abroad could obtain a preliminary copyright good for a year during which they could begin printing or translating the work in the United States if they wished to secure American copyright.

On March 4, 1909, further slight modifications were enacted in legislation which revised our copyright law and basically remains in effect today.  In its chief international respects it was similar to the 1891 act except for the provision that aliens domiciled in the United States at the time of the first publication of their work could obtain copyright here even if their native countries did not grant reciprocity to Americans. [42]  For the purposes of the statute, “domicile” was interpreted by the courts to retain its common law meaning of residence in the United States with the intention of remaining there for an unlimited period of time. [43]

Meanwhile the Bern Union was continuing its slow but steady growth until, by 1901, only Russia and Austria-Hungary of the important European nations stood outside of it.

After a meeting held at Paris in 1896 to consider certain modifications of the original agreement, at which Henry Alexander, the counsellor of our Embassy at Paris, represented the United States but did not take part in the proceedings, a conference was held at Berlin in 1908 at the invitation of the German government.  The purpose of this conference, according to a report of British commissioners, was

to secure, if possible, a general agreement to such a revision of the Berne Convention and the Additional Act of Paris as would enable the contracting States to sign a single new instrument containing stipulations of a more complete and simple character, with a view not only to afford a more effectual protection to the author, but also to remove the more salient difficulties which had been encountered in the working of the existing arrangements. [44]

Non-members of the Union were also invited by the German Government and were among the 35 countries represented by 85 delegates.  Thorvald Solberg, Register of Copyrights of the Library of Congress and leading exponent of international copyright, was designated as the American delegate by Elihu Root, Secretary of State, with the understanding that he was to attend the conference solely for the purpose of observing the proceedings and making such notes and report as would be useful to this Government.

42. 35 Stat. 1075-1078.

43. G. Ricordi 4 Co. Inc. vs. Columbia Gramophone Co. (1920), 263 Fed. 354.

44. Copinger, p. 256.


The resultant Berlin Convention of 1908 made two important advances: the elimination of all formalities as prerequisites for protection; and the adoption of the principle making protection of a work in a member country independent of whether it was protected at its origin.  Appreciating the difficulty of having all countries accept such comparatively radical suggestions, the signatories stipulated that nations in ratifying the Berlin convention could specify that they chose to be bound by the original convention rather than by the revised one.

The Berlin Convention served rather as a guide or goal than a definite legal agreement.  It was significant both in this way, however, and because a number of countries ratified without reservations: Austria, Belgium, Brazil, Bulgaria, Czecholovakia, Danzig, Germany, Haiti, Hungary, Liberia, Luxemburg, Morocco, Monaco, Poland, Portugal, Spain, and Switzerland.  Other countries (Denmark, France, Great Britain, Greece, Italy, Japan, the Netherlands, Norway, Rumania, Sweden, and Tunis) accepted with specific reservations.

America, however, continued to remain aloof.  Twenty-eight nations nevertheless did the unusual and permitted Americans to obtain “courtesy” copyright within their borders by “simultaneous” publication and solely upon the payment of Register’s fees. [45]   Such, for example, was the import of the British Copyright Act of 1911. [46]

Canada, however, alone of the British Dominions, refused to go along with the British law.  Peculiarly affected as a neighboring country with a similar literature, it considered it unwise to give the United States privileges which were not reciprocated.  Seeing too that Americans were receiving the benefits of the Bern Union without membership, Canada announced that it could adhere to the Union only with the provision that it need not give protection to nationals of other countries who obtained copyright in member countries of the Union. [47]

To deal with this problem, and by now presumably resigned and perhaps perturbed at America’s non-participation, Great Britain, on March 20, 1914, obtained the unanimous consent of the Union to a protocol permitting members of the Union to refuse protection to citizens of non-members who are not domiciled in a country belonging to the Union where the laws of their native state do not protect “in a sufficient manner” the works of other authors.

Such was the status of international copyright when World War I broke out in 1914 and so it substantially remained until 1928, except for repeated attempts in Congress to enact legislation authorizing the United States to

45. L. J. DeBekker, “World Copyright” in The Nation, Vol. 127 (1928), p. 253.

46. 1 and 2 George V, ch. 46.

47. Herbert A. Howell, “International Copyright Relations of the United States” in Yale Law Journal, Vol. 27, No. 3 (January, 1918), p. 349.


enter the Union. [48]   The United States was out of the Union, but it had reciprocal copyright relations, under the 1909 statute, with 41 nations. [49]

The next conference of the International Copyright Union took place in Rome in 1928.  The most significant accomplishment of the meeting from our point of view, except for the reaffirmation of the 1914 protocol, was the partial abandonment by the member states of their right to ratify the Convention with reservations.  The Convention was to take effect upon the receipt of 6 ratifications and was to apply in full force on July 1, 1931.  The only exception, - again, no doubt, with an eye to American participation, - was the provision that

Those countries foreign to the union will be permitted to join the union by way of adhesion until August 1, 1931, under the convention signed in Berlin, November 13, 1908, or the present convention.  After August 1, 1931, they will only be able to adhere to the present convention. [50]

A total of 40 countries ratified the convention.51

On December 15, 1933, the drive from within the United States was renewed with a petition addressed to the Secretary of State and signed by the presidents of 12 universities, namely, California, Columbia, Chicago,, Harvard, Iowa, Johns Hopkins, Minnesota, North Carolina, Princeton,, Texas, Wisconsin, and Yale, pointing out the “discreditable position occupied by the United States with reference to international copyright” and stating that our law “constitutes a standing affront to friendly powers and can not be defended on moral grounds”. [52]

As a result of this and similar pressure the stage was prepared in 1935 for the governmental action which would make the United States a signatory to the International Copyright Union. Since this would involve not only our rejection of the “manufacturing clause” but also the release of foreign authors from compliance with American copyright formalities of notice, deposit of copies, and registration fees, the Authors’ League of America protested that American authors were thus to be discriminated

48. 1922-HR 11476; 1924-HR 9137; 1925-HR 5841, 11258; 1926-HR 10434.

49. Australia, Austria, Belgium, Bolivia, Brazil, Canada, Chile, China, Costa Rica, Czechoslovakia, Cuba, Denmark, Dominican Republic, Ecuador, France, Germany, Great Britain, Guatemala, Haiti, Honduras, Hungary, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Nicaragua, Panama, Paraguay, Poland, Portugal, Salvador, Siam, South Africa, Spain, Sweden, Switzerland, Tunis, and Uruguay.

50. DeBekker, as cited.

51. Australia, Austria, Belgium, Brazil, Bulgaria, Canada, Czechoslovakia, Danzig, Denmark, Estonia, Finland, France and her colonies, Germany, Great Britain and its possessions, Greece, Haiti, Hungary, India, Irish Free State, Italy, Japan, Lichtenstein, Luxembourg, Morocco, Monaco, the Netherlands and its possessions; New Zealand, Norway, Poland, Portugal and its colonies, Rumania, Siam, Spain and its colonies, Sweden, Switzerland, Tunis, Union of South Africa, the Vatican, Yugoslavia.

52. Solberg, “Copyright Reform”, p. 357.


against inasmuch as they were compelled to comply with these formalities. [53]

An agreement was, therefore, made between Senator Duffy, of the Foreign Relations Committee, whereby domestic legislation putting American copyright law into harmony with the international provisions would be considered together with the proposed treaty.  But as a result of premature action the treaty making the United States a signatory to the Union was approved by the Senate on April 19, 1935, before the domestic legislation had even received committee consideration.  Keeping to his agreement, Senator Duffy immediately prevailed upon the Senate to reconsider and await domestic legislation.  But agreement on domestic legislation never came about because of differences among the various lobby groups and the United States remained out of the Union.

At about this time a number of Dutch publishers began to “pirate” prominent American works by publishing translations without permission.  Two outstanding incidents involved The Yearling by Marjorie Kinnan Rawlings and Gone With The Wind by Margaret Mitchell.  At the trial in the Netherlands involving the latter book, it is interesting to note, the Dutch publishers, in the words of the presiding judge,

stated that they would have been quite prepared to pay for the right of translation if it were not for the fact that works copyrighted in the Netherlands are published in the United States time and again without any compensation.  The only way to compel the United States to accede to the Bern Convention is to disregard, in the countries which have acceded to that Convention, the copyrights of the citizens of that country.”

These incidents disturbed American authors and publishers and brought renewed efforts on their part for affiliation with the Union.  In January, 1938, the National Committee of the United States of America on International Intellectual Cooperation appointed a Committee for the Study of Copyright, under Dr. James T. Shotwell, to draft domestic reform legislation and prepare the way for the treaty.  Nearly a score of interested groups cooperated with the work of the committee.  As a result of that study legislation was introduced by Senator Thomas of Utah in 1940 and hearings were held before a subcommittee of the Senate Committee on Foreign Relations on April 14, 1941. [55]

Before much could be done, however, the United States was again embroiled in a worldwide war which demanded all of its energies and copyright legislation was put aside “for the duration”.

The recent war brought very little changes in the international copyright situation.  At its outbreak the United States had reciprocal copyright

53. “International Copyright” in The Library Journal, Vol. 60 (1935), p. 389.

54. Wallace McClure, International Law of Copyright, Washington, 1938, p. 19.

55. Senate Report No. 3043, 70th Congress, 3d Session.


agreements with all the important countries of the world except Bulgaria, Egypt, Ethiopia, Latvia, Lichtenstein, Lithuania, Persia, Russia, Turkey, Venezuela and Yugoslavia.  A new Treaty of Friendship, Commerce and Navigation, Article IX of which dealt with copyright and provided for most favored nation treatment, was signed between the United States and the Republic of China on November 2, 1946. [55a]  Our relations with Canada continued to be unsatisfactory and the Canadian law provided that unless an American copyright owner produced a Canadian edition within two months, any Canadian could apply for a license to reprint any book not actually produced and published in Canada..  All the leading countries of the world except the United States, Russia, China, Turkey, and all the Latin-American countries (omitting Brazil and Haiti, which are members) were members of the Union. [56]

One of the most interesting byproducts of the international crisis of 1939, and yet one not directly attributable to it, was a court decision involving the rights to the American edition of Adolf Hitler’s Mein Kampf.  The principle was there established that a “stateless” author had as much protection under our copyright laws as the “national” of any country with which we have a treaty.  The decision was of extreme importance to refugee authors. [57]

Directly a result of the war was the power of the Office of Alien Property Custodian to take over the copyright of those works owned by nationals of enemy countries which were of a scientific or technical nature and of use to the war program. Trade publications, such as Publishers’ Weekly, carried the following notice:

Any person interested in reproducing any scientific or technical text or treatise the copyright to which is owned by an enemy, or who knows of any such work which should be made available in the interests of the war program, should get in touch with the Alien Property Custodian at Washington, D. C. [58]

This practice, incidentally, is to be contrasted with that of the previous war.  Legislation approved on October 6, 1917, excepted copyright from the laws prohibiting trading with the enemy and expressly permitted an enemy or an ally of an enemy to file an application for registration of copyright in the United States, provided that the nation of the enemy applicant granted substantially similar privileges to United States citizens.  Applicants were also given an extension of 15 months after the war if necessary to complete copyright formalities.  Commenting on this provision Mr.

55a. Publishers’ Weekly, November 16, 1946, p. 2813.

56. Margaret Nicholson, A Manual of Copyright Practice, New York, 1945, p. 100.

57. Houghton, Mifflin Co. vs. Stackpole Sons,. Inc, decided by the Circuit Court of Appeals in New York on June 22, 1939.  The U. S. Supreme Court on October 23, 1939 denied a plea for review: 104 F.2d 306, 60 S. Ct. 131.

58.  October 10, 1942, p. 1579.


Herbert A. Howell of the Register of Copyrights in the Library of Congress said :

That such reciprocal treatment will be accorded as a matter of course seems highly probable, as from the beginning there has been manifested in all the beligerent countries a strong disposition to respect all international copyright relations. [59]

Another byproduct of World War II was an act passed by Congress and approved, on September 25, 1941, [60] which provided that when authors or their assigns are “temporarily unable to comply with the conditions and formalities” of our copyright law “because of the disruption or suspension of facilities essential for such compliance”, the President may grant an extension of time where the country of which the claimant is a national grants reciprocity to American citizens.  Such an agreement was entered into between the United States and England to go into effect March 10, 1944. [61]  President Truman’s proclamation of December 31, 1946, declaring an official “end of hostilities” did not end the agreement with England.  Cancellation of that agreement awaits special proclamation by the two countries. [61a]

Our tax laws also were affected and special legislation, effective November 1, 1942, provided that unless there is a special treaty to the contrary royalty payments to non-resident aliens are to be withheld by publishers to the extent of 30%.  The previous figure was 27 1/2%.  Special agreements were entered into with France, royalty to whose citizens was made exempt from taxation, with Sweden, for whose citizens a 10% withholding tax was agreed upon, and a 15% rate was adopted for Canadian citizens. [62]

So far we have been concerned primarily with American copyright relations as related to the International Copyright Union.  For a complete picture, however, it is necessary that we take notice of the various copyright agreements concluded under Pan-American auspices.

Although not, strictly speaking, a Pan-American’ agreement, the Treaty on Literary and Artistic Property signed at Montevideo on January 11, 1889, at the South American Congress on Private International Law, is generally considered the first instrument in the development of the Pan-American copyright system.  Unlike later agreements it was open to non-American states. Consequently in addition to being ratified by Argentina (1891), Bolivia (1903), Paraguay (1889), Peru (1889), and Uruguay (1892) it was agreed to by France, Spain, Belgium, Italy, Germany, and Austria.

Like the Bern Union it contained the beginnings of common international

59. Howell, p. 348.

60. 55 Stat. 732.

61. Publishers’ Weekly, March 18, 1944, p. 1211. 61a Publishers’ Weekly, January 11, 1947, p. 169.

62. Publishers’ Weekly, November 7, 1942, p. 1957.


legislation by establishing certain minimum rights irrespective of national law.  Unlike the Bern Union, however, it adhered to the principle of lex loci rather than lex fori, which means that the rights of an author are determined by the laws of the country of origin where the work is first published and not where the infringement takes place.

The first truly Pan-American copyright convention was signed at the Second International Conference of American States held at Mexico City in 1902.  It provides for a Union to protect nationals of the contracting parties, but here followed lex fori in that the nature and extent of protection was determined by the laws of the country where protection was sought.  The convention was ratified by Guatemala, Salvador, Costa Rica, Honduras, Nicaragua, and the United States.

The Third International Conference of American States, held at Rio de Janeiro in 1906, affirmed the provisions of the 1902 convention and provided further for the establishment of two copyright bureaus for international registration at Rio de Janeiro and at Havana.  Not a sufficient number of countries ratified the agreement, however, and the bureau was never established.

Finally, on August 11, 1910, a basic Pan-American copyright instrument was signed at Buenos Aires at the Fourth International Conference of American States.

Here too, as in the Bern Union, the principle of lex fori as to the nature and extent of protection was established.  A work published in a member country was thereby protected in all of the countries agreeing to the convention.  The United States adhered to the convention on July 13, 1914. [63]   Other ratifying countries were : Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay, Peru, and Uruguay. [64]

The Buenos Aires convention of 1910 remains the basic Pan-American copyright instrument, even though an attempt was made in Havana in 1928 at the Sixth International Conference of American States to revise the agreement.  Only Colombia, Costa Rica, Guatemala, Nicaragua, and Panama ratified the latter.

Since not all Latin American countries are parties to any one agreement, therefore, much international protection is ineffective and confusing.  United States authors, by treaties and reciprocal agreements nominally can secure protection in all Latin American countries except Bolivia and Venezuela, but the extent and terms of the protection differ widely.  The Mexico City agreement of 1902 governs our relations with El Salvador; and we have seen above the list of countries ratifying the 1910 agreement.

63. 38 Stat., pt. 2, 1785.

64. William Sanders, “International Copyright Protection” in Bulletin of the Pan-American Union, Vol. 73 (1939), pp. 418-428.


Reciprocity with Argentina, Chile, Cuba, and Mexico is governed by various Presidential proclamations as provided for in our laws, described above.  Finally, Brazil and Haiti are also members of the Bern Union and our citizens can secure their protection by publishing in a member state.

The extent of the ineffectiveness of the above agreements, in the absence of uniform regulations, may be gleaned from an account in the July 31, 1942, issue of Mexico’s Tiempo.  Ernest Hemingway agreed with a Mexican publisher for an edition of his works, Death in the Afternoon and For Whom the Bell Tolls.  While the Mexican book was in preparation, a pirated Argentine edition appeared.  Said the Mexican periodical :

Mexico, the Latin American country which has shown most respect for legal practices in publishing, has been deprived of the privilege of publishing two books, rights to which had been acquired by an editor of this country.  And Ernest Hemingway will wage a futile battle against a pirate publishing house. [65]

An example of another type of chaos was well described by a Latin American author who printed an English translation of his work and because of our laws could not obtain protection in the United States.  He said :

Considering all the wonderful declarations we hear about Pan-Americanism it seems peculiar that my efforts in trying to make my country better known in the United States should be circumvented by the United States copyright law. [66]

To meet this situation the Governing Board of the Pan-American Union, on December 5, 1945, approved the calling of a conference of special delegates from all American Republics to exchange views on copyright and draw up a treaty on this subject.  Such a conference met in Washington, D. C., in June, 1946, and, after exploring differences of opinion which prevailed on questions of copyright registration and the inalienability of an author’s rights, member representatives of the American Republics signed a convention for uniform copyright protection on June 22.

The agreement, which is intended to replace the 1910 convention of Buenos Aires and its 1928 Havana revision and all earlier inter-American conventions on copyright, must be ratified by the signatory- states.  Rights granted under the earlier conventions would not be affected by the agreement.

The convention provides that an author obtaining protection in one country shall automatically be granted protection in the other republics

65 “Chaos in Copyright” in The Inter-American Monthly, Vol. 1 (1945), p. 45.

66 Stephen P. Ladas, “Inter-American Copyright” University of Pittsburgh Law Review, Vol. 7, No. 4 (June, 1941), p. 289.


without submitting to any formalities, such as registering or depositing his work.  Duration of copyright protection is governed by the law of the country in which obtained, but may not exceed the duration fixed in the country where protection is claimed.

It further recognizes the exclusive right of an author of a literary, scientific, or artistic work to use and transfer his work in any manner and to transmit it by will or by operation of interstate laws.  In selling, assigning, or otherwise disposing of his work the copyright author nevertheless retains the right to claim paternity of his work and oppose any modification or use of it prejudicial to his reputation as an author, unless he consents to waive this right in accordance with the law of the country in which the contract is made.

Provision is made for allowing the press to reproduce articles on current events from other newspapers and from magazines, unless reproduction is prohibited by a special or general reservation.  In any case, however, the source of a reproduced article must be clearly cited.  No protection is given to the factual content of news published in newspapers.

The scope of the convention is indicated by Article 3 which says :

The literary, scientific and artistic works protected by the present convention comprise books, writings and pamphlets of all kinds, whatever the number of their pages; written or recorded versions of lectures, addresses, lessons, sermons, and other works of a similar nature ; dramatic or dramatico-musical works; choreographic works and pantomines the stage directions of which are fixed in writing or other form; musical compositions with or without words; drawings illustrations, paintings, sculptures, engravings, lithographs ; photographic and cinematographic works; astronomical and geographical globes; maps, plans, sketches or plastic works relating to geography, topography, architecture, or any science; and, in short, any literary, scientific, or artistic work that can be published or reproduced.

Translations, adaptations or other versions of literary, scientific, or artistic works, including photographic and cinematic adaptations, are also protected as original works. [67]

Public discussion of the convention to precede Senate action on ratification has begun.  The American Bar Association has already held a special hearing on the subject, at which support for the treaty was voiced by Dr. Luther H. Evans, librarian of Congress, who headed this country’s delegation to the conference.  Opposition to ratification has been expressed by representatives of the National Association of Broadcasters, the American Book Publishers Association and several large recording companies. [67a]   Final action has not yet been taken.

Realizing that there are and should be no frontiers to the sphere of the

67 The Department of State Bulletin, Vol. XV (July 7, 1946), p. 29. 67a The New York Times, February 2, 1947, p. 27.


intellect, efforts have been made within the past decade to unite the two international systems of copyright in existence today, the Inter-American treaties and the original Bern Union.  The 1928 Rome conference which revised the Bern and Berlin agreements accepted resolutions introduced by Brazil and France suggesting a study designed to draw the two systems together.  On September 24, 1928, the Ninth Assembly of the League of Nations resolved that the Council of the League

have its component organs make all the necessary investigations and consultations regarding the desirability of a general agreement having for its object the unification, on an international basis, and in full conformity with the wish expressed at the Rome Conference… of all laws and measures for the protection of intellectual property.

As a result of these efforts, a committee of experts was appointed jointly by the International Institute for the Unification of Private Law, at Rome, and the International Institute for Intellectual Cooperation, at Paris; and they drew up a proposed draft convention for preliminary discussion.  On the strength of this work the Belgian Government, in 1936, after first calling for a meeting of Bern signatories, agreed to call a conference to be held at Brussels in 1938 or 1939, to which all the states of the world would be invited, to explore the possibility of a Universal Copyright Convention. [68]

On this side of the ocean, meanwhile, the Seventh International Conference of American States, meeting at Montevideo in 1933, created a commission of five to consider the necessary legislation to unify the two systems.  At the same time the Governing Board of the Pan-American Union invited the Executive Committee of the American Institute of International Law to study the matter and the two committees cooperated in this effort. [69]   As a result of this preliminary study, the Eighth International Conference .of American States, held at Lima, in 1938, recommended to members of the Pan-American Union that they send delegates to the proposed Brussels conference.

In view of the outbreak of the war, however, the Brussels conference never took place.

We have seen the development of copyright law from its infancy, when it became established as a principle in the law of nations, down to the present time when the states begin to accept the inevitability of internationalization.

Isolation is impossible.  Whether the governments of the world come to see and act upon that truth in time to avoid further conflict, only time will tell.  So long as the United States, Russia, and China, however, remain out of the International Copyright Union and so long as the bulk of

68. Committee for the Study of Copyright, Report on the Status of International Copyright Protection and on the Brussels Meeting of the Committee of Experts, New York, 1938.

69. Bulletin of the Pan-American Union, as cited.


the American states choose to remain by themselves, it would appear that the lesson has not been adequately learned.

Secretary of State Cordell Hull, commenting on proposed action whereby the United States would join the Union said that it

fits definitely into the program of endeavoring to build up, step by step, better international relations in general.  I am convinced that thus to take advantage of opportunities for the betterment of details is a particularly appropriate way for democratic peoples to make their influence effective, and that, in a world torn by destructive efforts, we should let pass no occasion which offers a chance to achieve constructive results. [70]

Although no action was taken on the proposal, the United States has become a part of the United Nations, the attempt of our day to meet the needs of internationalism.  Whatever defects exist in the United Nations organization, and there are many, one of its most effective elements certainly meriting our endorsement is the encouragement it gives, through the Economic and Social Council, for functional cooperation among nations and peoples.  Out of this came the meeting in London establishing the United Nations Educational, Scientific and Culture Organization, within whose sphere will fall the problem of international copyright.  The UNESCO Constitution, signed by 44 nations in November, 1945, includes among its purposes and functions, in Article 1, to “recommend such international agreements as may be necessary to promote the free flow of ideas by word and image” and also to “maintain, increase, and diffuse knowledge… by initiating methods of international cooperation calculated to give the people of all countries access to the printed and published materials produced by any of them”. [71]

In preparing for the first UNESCO conference held in December, 1946, at Paris, the United States National Commission for UNESCO, acting in accordance with a Congressional resolution [72] met in Washington, D. C. in September, 1946, and made the following recommendation: “The American Delegation should advance and support proposals for action to free the channels of international communication of obstacles created by discriminatory or unduly restrictive copyright legislation”. [73]

Similar thinking prevailed in UNESCO’s Preparatory Commission, which placed the necessity to correct the present system of international copyright  protection near the top of its work project list and recommended the calling of an international conference on copyright. [74]   In view of more

70. McClure, as cited in this JOURNAL, p. 395.

71. International Conciliation, October 1946, p. 449.

72. H. J. Res. 305, Public Law 565, 79th Congress, Chapter 700, 2nd Series.

73. The Department of State Bulletin, Vol. XV (October 13, 1946), p. 687.

74. “Record of First UNESCO Conference” in United Nations Weekly Bulletin, Vol. 1 (December 31, 1946), pp. 28-36.


pressing problems in the minds of the delegates, such as world education, radio, population and nutrition studies, however, such action was postponed at the December conference and an announcement was made that UNESCO would cooperate with the United Nations in a report which would deal with copyright restrictions. [75]

Again we look with hope.  It may well be borne out in the field of international copyright too that the equity of one age becomes the law of the next.

75 The Department of State Bulletin, Vol. XVI (January 5, 1947), pp. 20-22.