13 Law Notes (Edward Thompson Co.) 1 (1909-1910)

handle is hein.journals/lawnotes13 and id is 1 raw text is: APRIL, 1909.]                               LAW    NOTES.

X aw 'tes
APRIL, 1909.
JAMES COCKCROFT, President. W. M. MCKINNEY, Vice-President.
D. S. GARLAND, Secretary.  J. W. HILTMIAN, Treasurer.

The New Copyright Law
Copyright and the Constitu-
tion ... .........
Mechanical Reproduction of
Music ..  ........
The Resignation of District
Attorney Kealing
Negligence of Servant Tem-
porarily  Transferred to
Another ..  ......
Lawyers and the Cabinet
Lawyers and Past Cabinets.
A Neglected Caue of Action
t he Changed Attitude of the
Supreme Court towards
State Legislation  . . .
The Conviction of  icher-
Hansen   ......
The Deadly Parallel and
Hannis Taylor ....

Hains and the Unwritten
Law ...     ....... 6
The Element of Bona Fides
in the Crime of Disturbing
Religious Worship . . .  6
1issouri Rate Laws Declared
Confiscatory  .  . . .  8
Histrionics and Homiletics
for the Jury .. ..... 8
The New Kansas Code of
Civil Procedure . . . . 10
The Oratory of Lord Ers-
kine ..   .......     11
ENGLISH NOTES              16
OBITER DICTA......         17

The New Copyright Law.
C OqNGRESS has at last enacted a new copyright law, the
declared purpose of which is to bring light out of
darkness and to make crooked things straight. Perhaps
there would have been a greater assurance of this if the
measure proposed by the committee had received more
attention from the two houses, but they seem to have been
satisfied that the committee had done all that was neces-
sary, and so the bill was passed as reported, practically
without discussion of its measures. In some respects the
new law is more certain than the old one, though in others
it is less so. Formerly the procedure for obtaining copy-
rights was perfectly definite. There were certain things,
clearly specified, that were required. These were condi-
tions precedent. The new law seems to change this; cer-
tainly it was intended to do so, because the former state
of the law in this particular was one of the grievances
against it. And yet it may be said that there is a very
reasonable doubt as to whether the change is really accom-
plished. For instance, section 9 provides that  any
person entitled thereto by this act may secure copyright
for his work by publication thereof with the notice of
copyright required by this act. Does this mean that copy-
right of a work comes into existence by publication
thereof with the notice of copyright ? If it does, then
what is the meaning of the first two lines of section 1 that
 any person entitled thereto, upon complying with the
provisions of this act shall have the exclusive right, etc. ?
And what are the provisions of the act that must be com-
plied with in order to give the  exclusive right ? The
provisions of the act are nearly all permissive in char-

acter so far as concerns things to be done by persons seek-
ing copyright. Thus  such person may obtain registra-
tion of his claim to copyright, but there is no provision
that the name or description of any work shall be regis-
tered. The chief mandatory provisions are that a copy-
right notice shall be affixed to each copy of a copyrighted
work (unless omitted  by accident or mistake); that
two copies of such work shall be deposited in the Library
of Congress; and that the work shall be printed from type
set within the limits of the United States. Some effort
is made to secure the deposit of the copies in the Library
of Congress, by a provision for the forfeiture of the copy-
right if the deposit is not made within three months after
a demand by the register of copyrights  upon actual
notice.  Publishers have never shown      any   feverish
anxiety to get their publications on the shelves of the
National Library, and this provision should be very satis-
factory to them. In no case will their copyrights be
prejudiced by their failure to make the deposit until they
have had  actual notice of their dereliction from the
register of copyrights. It is true that they cannot sue for
infringement until the deposit has been made, but the right
is given to make it at any time before suit is brought. If
all publishers should adopt this course, as they would have
a right to do under the law, the principal work of the copy-
right office would probably consist of making these de-
mands. Since registration is not essential to copyright,
however, as seems to be the case, it is not easy to under-
stand how the copyright office would get its information
as to the works copyrighted  by publication thereof with
the notice of copyright as a basis for a demand for the
deposit of copies. The domestic manufacture provision
is left in a parlous state. The old law made the copyright
dependent on strict compliance with it. Whether the new
law can be so interpreted is a matter of very grave doubt
to say the least, and depends on whether copyright of a
work is obtained  by publication thereof with the notice
of copyright (section 9), or whether copyright is ob-
tained only  upon complying with the provisions of this
act. At any rate there is no express provision that any
copyright shall fail in case of noncompliance.
Copyright and the Constitution.
BUT the most interesting question of copyright law under
any federal statute is how far Congress can go in the
premises, and whether it has not already exceeded its
constitutional power.  The committee fully appreciated
this, as their report shows. The question of course is what
may properly be considered as the  writings of an
author. It cannot be that these words were intended
to comprehend all visible expressions of intellectual con-
ceptions, including the products of special gifts of manual
dexterity. And if any of these things are not covered by
the words  writings of an author, it is clear that resort
for protection must be had to the States and not to Con-
gress, which has only such power as is expressly conferred.
At the time the Constitution was adopted sculpture, paint-
ing, the multiplying process of engraving and the like
were perfectly well known, and it is not conceivable that
the masters of language who framed the Constitution meant
such things as statuary and pictures where they used the
words  writings of an author. Besides the plain mean-
ing of the words, a clear indication of the reason for not


APL J, 1909.]

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