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Copyright in War and Peace
Published online by Cambridge University Press: 12 April 2017
Extract
When citizens of the United States propose a discussion of any subject of public policy which is specifically mentioned in the national Constitution, the constitutional provision is likely to be the most appropriate point of departure. The statesmen who framed the great charter of 1787 were on the alert in the public interest when, after providing that "All legislative Powers herein granted shall be vested in a Congress of the United States,"1 they added 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
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- Research Article
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- Copyright
- Copyright © American Society of International Law 1942
References
1 Const., I, 1. Italics not in original.
2 Const., I, 8. See pertinent comment in U. S. Congress, House of Representatives, 60th Cong., 2d Sess., Rept. No. 2222, to accompany H. R. 28192, pp. 6–7. The bill referred to became the Copyright Act of 1909.
3 Said Madison, in The Federalist (No. XLIII), referring to the constitutional provision: “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”
4 See U. S. Senate, Committee on Patents, 77th Cong., 2d Sess., Hearings on S. 2303, a bill to provide for the use of patents in the interest of national defense or the prosecution of the war, and for other purposes.
5 Act of Mar. 3, 1891, Sees. 3 and 13 (26 Stat. 1106, 1107, 1110).
6 Act of March 4, 1909, Sec. 15 (35 Stat. 1075, 1078).
7 U. S. Treaty Series, Nos. 491 and 593.
8 Congressional Record, Vol. 79, Pt. 6, p. 6028 (April 19, 1935), 74th Cong., 1st Sess. This instrument continues to be commonly referred to as the Bern Convention.
9 Const. VI. In this connection, see Bacardi Corporation v. Domenech (1940), 311 U. S. 150; this Journal, Vol. 35 (1941), p. 383.
10 Act of 1909, Sec. 9. Washingtonian Publishing Co. v. Pearson, et al. (1939), 306 U. S. 30.
11 Art. 6 bis.
12 Art. 2. See U. S. Senate, 77th Cong., 1st Sess., Ex. Rept. No. 1, p. 5, Jan. 16, 1941, Committee on Foreign Relations. Submitted by Mr. Thomas of Utah.
13 Art. 18.
14 U. S. Treaty Series, Nos. 491 and 593.
15 These arrangements are evidenced by presidential proclamations appearing currently in Statutes at Large.
16 This term is used in no opprobrious sense, but merely to connote, after the analogy of the exploiting of natural resources, the use of cultural resources for private profit of a purely commercial nature. Obviously those interests have made available for the public literary and artistic creations on an unprecedented scale and in a way which, despite gross abuses, not only makes possible magnificent cultural achievements, but actually results in educational values of the highest importance.
17 For an attempt to show that the adoption of the treaty would in reality operate for the benefit of all interests, even the special interests opposing it, see U. S. Senate, Committee on Foreign Relations, 77th Cong., 1st Sess., Hearings before a subcommittee on Ex. E, 73d Cong., pp. 185–186.
18 Art. 6 bis.
19 See U. S. Senate, 77th Cong., 1st Sess., Ex. Rept. No. 1, p. 5.
20 Art. 2.
21 Art. 18. See also Art. 13. U. S. Senate, 77th Cong., 1st Sess., Ex. Rept. No. 1, p. 5.
22 S. 3043, 76th Cong., 3d Sess., Jan. 8, 1940.
23 At the hearings on the treaty in 1941, Dr. Waldo G. Leland, Chairman, The Committee for the Study of Copyright, said: “The Committee for the Study of Copyright which is concerned only for the public interest broadly interpreted, is convinced that, immediately upon the ratification of the convention, the necessary legislation can be offered in a form that will be generally acceptable and can be adopted without the conflict of interests that has characterized and frustrated previous efforts to reform our copyright law.” Hearings, loc. cit., p. 46.
24 Reports of American Bar Association, Vol. 66 (1941), pp. 156–158.
25 This is indeed a pathetic commentary. There is every reason to believe that a well-nigh complete unity of interest exists and that not only would no interest, private or public, suffer from the adoption of the treaty, but that all would gain advantage from such step. See supra, footnote 17.
26 A Vice-President of the American Society of International Law. The former chairman of the subcommittee was Senator Duffy, of Wisconsin, whose accompanying bill for the general reform of the copyright laws achieved the unique distinction of being the only such bill, since the treaty was sent to the Senate, to be passed by that body. It was not acted upon by the House. Some years before the Vestal Bill, approved by the House, had died in the Senate.
27 Hearings, he. cit., pp. 162, 163–164.
28 Hearings, he. cit., p. 36.
29 Final Act, Resolution XXXIX.
30 55 Stat. 732. For corresponding Act of World War I period, see 41 Stat. 368.
31 The Act of 1941 also provides for extension of time for renewal of copyright.
32 See U. S. Senate, 77th Cong., 1st Sess., Ex. Rept. No. 1, pp. 1–2.
33 55 Stat. 838. Approved Dec. 18, 1941.
34 Concerning the disposition of holdings of Alien Property Custodian following World War I, see Foreign Relations of the United States, 1927, Vol. I, pp. 301–308. For mention in an interesting connection of the question whether a patent (or copyright) is “property” in the sense of the Fifth Amendment to the Constitution of the United States, hence that the monopoly is irrevocable by Congress, see U. S. Senate, Committee on Patents, 77th Cong., 2d Sess., Hearings on S. 2303, Pt. 1, p. 34, April 14, 1942.
35 Whether the convention, which is a general multipartite treaty, if now adhered to by the United States, would be in force or in suspense for the duration of the war as between the United States and those countries with which it is at war, is a question of extreme nicety and difficulty. It would certainly be in force, however, as to other countries parties and the powers of the Alien Property Custodian are not limited to the investiture of copyrights of enemy nationals.