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The Publishers Weekly,

FOUNDED BY F. LEYPOLDT.

JANUARY 8, 1887.

PUBLISHERS are requested to furnish title-page proofs and advance information of books forthcoming, both for entry in the lists and for descriptive mention. An early copy of each book published should be forwarded, to insure correctness in the final entry.

In case of business changes, notification or card should be immediately sent to this office for entry under "Business Notes." New catalogues issued will also be mentioned when forwarded.

Every man is a debtor to his profession, from the which, as men do of course seek to receive countenence and profit, so ought they of duty to endeavor themselves by way of amends to be a help thereunto."-LORD BACON.

INTERNATIONAL COPYRIGHT IN THE

SENATE.

THE Senate of the United States will presently be called upon to pass the first vote recorded for or against international copyright. It is a curious fact that, although the subject has been before each house of Congress many times, there has never so far in either house been a direct vote taken on any measure. It is understood to be the intention of Senator Chace not only to ad

dress the Senate, on the consideration of the report of the Committee on Patents, but to press for a vote on the committee bill, which is practically his bill.

The responsibility has been very clearly put upon Congress by the letters of successive Secretaries of State, Republican and Democratic, in connection with the conferences at Berne, as published recently in House Ex. Doc. No. 354, 49th Cong., Ist session, including the correspondence on this question, transmitted by the President July 9th and referred to the Judiciary Committee. On January 24, 1884, Secretary Frelinhuysen wrote to our Minister to Switzerland: "The question of international copyright has for many years attracted the attention of this Government. While disposed in principle toward the proposition set forth that the author of a literary or artistic work, whatever be his nationality and whatever the place of reproduction, should be everywhere protected on the same footing as the citizens and subjects of each nation,' this Government sees grave difficulties in the way of a general arrangement to embrace all countries in one scheme of copyright protection. The difference of tariffs of the several countries, and the fact that many other industries besides that of the author or artist are concerned in the production and reproduction of a book or work of art, must be borne in mind when considering any plan by which the originator of the work is to be vested with the right to produce or to prohibit its production in all other countries. A book is a manufacture towards which the paper-maker, typefounder, the printer, the binder, and many other

persons in the trades contribute. The relations between them and the author are dependent and mutual and must be considered in framing any general scheme, inasmuch as they place an author in a very different position from a printer or sculptor, whose personal handiwork goes upon the market.

"These points are mentioned not as expressing results reached by this Government, but as the obstacles to the adoption of an international copyright with a country whose tariff differs from our own."

On June 29, 1886, Secretary Bayard wrote:

"The important question of international copyright has been before the Congress of the United States for several years, and a legislative measure is there pending, which will authorize the conclusion of international treaties on the subject. The matter has not advanced far enough in the legislative channel to enable the Executive to act with the desirable knowledge that the course it might adopt would be likely to agree with the views of Congress. Moreover, the Constitution of the United States enumerates among the powers expressly reserved to Congress that to 'Promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries, which implies that the origination and limitation of measures to those ends rest with the legislative rather than the treaty-making power. Copyrights and patents are on the same footing of regulation by Federal legislation, and the Executive branch of this Government cannot be unmindful that the Senate has only recently withheld its advice and consent from an international convention for the protection of industrial property, which modified and enlarged for the benefit of foreigners the municipal laws of the United States in regard to patents.

"All these considerations have necessarily deferred a reply to the invitation of the High Federal Council of November 6, 1885; and the continued pendency of measures in Congress makes it, as yet, impracticable for the United States to depute a plenipotentiary to attend the forthcoming conference at Berne for the purpose of signing the proposed international copyright con

vention.

"The attitude of this Government toward the

In

project is merely of expectancy and reserve. principle, it favors the plan, but without determinate views as to the shape it should assume, and is at present unprepared to suggest modifications which might conform the convention to the legislation which Congress may hereafter deem appropriate. Without feeling authorized to join in the proposed convention as a full signatory, we do not thereby wish to be understood as opposing the measure in any way; on the contrary, the Government of the United States reserve, and without prejudice, the privilege of future accession to the international convention should it become expedient and practicable to do so."

President Arthur, in his message of 1884, wrote: "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.

President Cleveland referred favorably to international copyright in his first message, and in that of 1886 said:

For this the United States were not represented compromise, for it is drawn from the extreme at the recent conference at Berne." point of view on the other side. Its passage would be a gain, for it would put this country at least a step in advance of its previous record. The clause absolutely prohibiting importations, however, cannot but raise strong opposition on the part of many others as well as authors, and we could wish heartily that Senator Chace and those associated with him in preparing the measure could see their way to liberalizing the bill in this direction. If the Copyright League would follow the lead of its own President in expressing a willingness to accept a copyright bill containing a manufacturing clause, and those represented by Senator Chace would consent to liberalize the non-importation clause, a way out might be found which would enable all interests to unite on this most desirable measure.

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"The drift of sentiment in civilized communities toward full recognition of the rights of property in the creations of the human intellect has brought about the adoption, by many important nations, of an International Copyright Convention, which was signed at Berne on the 18th of September, 1885. Inasmuch as the Constitution gives to Congress the 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,' this Government did not feel warranted in becoming a signatory pending the action of Congress upon measures of international copyright now before it, but the right of adhesion to the Berne Convention hereafter has been reserved. I trust the subject will receive at your hands the attention it deserves, and that the just claims of authors, so urgently pressed, will be duly heeded."

These extracts show that the Executive branch of the government under Administrations of both political parties has recorded itself in favor of international copyright, with perhaps some advances from one Administration to the other; and that the question is now definitely one for domestic legislation, the treaty plan having practically been abandoned on all sides. As the question comes practically before the Senate first, that body will undoubtedly give the decisive vote, and it is to be hoped sincerely that this vote will not be antagonistic to a line of progress in which all other civilized nations have joined.

We join heartily in the desire that the copyright question should not be involved with the tariff question. If a manufacturing clause must® be made, as is apparent, a sine qua non of an international copyright measure at the present time that is certainly providing all necessary conditions in favor of the American manufacturer. The tariff on books is a separate matter, which must be treated separately. If one side or the other insist upon involving this question with the far wider one of protection vs. free trade, there would seem to be no present possibility of outcome. But on a moderate measure such as we have indicated there should be no reason why the Fortyninth Congress should not relieve this country from the disgrace of being behind all other nations in its treatment of the rights of authors.

THE PROPOSED ANNUAL CATALOGUE.

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"YES, the trade do want it and want it badly. Enter my name for two copies. Every bookseller (not book-butcher) should have one." So writes Robert Beall, Washington, in sending the first order received for the proposed ANNUAL CATALOGUE, 1886. Glad to see that you propose issuing a yearly catalogue, and will subscribe for two copies, one for the store and one for myself. We will do this much each year to help this much-needed annual," writes another Washington friend. "We sincerely hope the trade in general will appreciate the publication by responding promptly with their orders," writes a New York dealer. These are among the immediate

We print elsewhere the circular of the Executive Committee of the Copyright League to its members urging that the Hawley Bill as well as the Chace Bill should be considered by the Senate. The recommendation is so academic as to be meaningless, because with the consideration of the Chace bill the whole question is necessarily before the Senate subject to any kind of amendment, but still more because the Hawley Bill in its original shape has practically been abandoned by Senator Hawley himself. Mr. Lowell's own remarks before the Senate Committee on Patents, as well as those of Mr. Clemens, also speaking for the League, virtually waived the opposition to the manufacturing clause, which is really the bone of contention of the League committee, and the present circular seems to be the result of endeav-responses to our advertisement of last week askoring to reconcile opposing views by saying nothing at all. It is to be regretted that the Copyright League is dissipating its force in this way. The willingness to agree in some kind of compromise measure which could be accepted by all friends of copyright would on the other hand have been of great service at this juncture.

The Chace Bill is to be sure scarcely such a

ing, Does the trade want an Annual Catalogue ? but, though they seem to show a decided demand, there are so far by no means enough to warrant our going ahead. If any others want the Catalogue, they must say so at once. We propose to print, if we print at all, only a small edition, that will not supply many orders beyond those entered in advance.

THE LOVELL-HOUGHTON LIBEL CASE.

THE following decision, in General Term of the New York Supreme Court, in the case of John W. Lovell Co., appellant, vs. Henry O. Houghton and ano., respondents, settles the law, unless the case is carried to the Court of Appeals, in a matter most important to publishers engaged in copyright controversies. The original case was a libel suit for $25,000, brought by Lovell against Houghton because the latter house, in advertisements printed in the PUBLISHERS' WEEKLY, denounced the Lovell cheap editions of "Hyperion" and "Outre-Mer " as a violation of the rights of the Longfellow heirs, as they contained alterations not yet out of copyright. The decision, which we give in full, has no bearing on copyright law, but only on the law of libel. In the lower court Judge Ingraham had directed a verdict for defendants (PUBLISHERS' WEEKLY, Jan. 30, 1886, p. 139).

BEFORE SEDGWICK, TRUAX, AND O'GORMAN, J. J. June, G. T., 1886. John W. Lovell Company, Applt., v. Henry O. Houghton & ano., Resps. Appeal by plaintiff, from judgment dismissing plaintiff. entered upon direction of Judge at trial term. Mr. Roger Foster for Applt. Mr. Allen W. Evarts and Mr. Joseph H. Choate for Resps.

SEDGWICK, J.: The learned Judge below was of opinion that this action was to be determined by the rules that are applied in actions for slander of title and cited Hovey v. The Rubber Tip Pencil Co., 57 N. Y., 125. He further said that the matter complained of was at least a privileged communication, and that the complaint must be dismissed because the plaintiff had not proved malice in fact. A supposed slander of title is one kind of privileged communication. Its subject matter is, as in the present case, a claim of right,

in the nature of property, antagonistic to a right claimed by the plaintiff.

The learned counsel for plaintiffs claims that the circulars sent out by defendants charge that the publication by the plaintiffs of the books in question infringed a copyright which the defendants claim still existed in later editions of "Hyperion" and "Outre-mer," reissued by Longfellow after their first publication.

The testimony disclosed that the defendants had made agreements with Mr. Longfellow under which they published the books; that Mr. Longfellow claimed that he had copyright in the books, and that on "Hyperion," when published in 1869 by defendants, there was a claim of copyright:

"Outre-mer" was published in 1835. The plaintiffs claimed the right to publish their editions of the books because, as they claimed, they were reprints of the early editions of the books printed in 1835 and 1839, the copyright in which had expired with the 42 years thereafter.

The plaintiffs knew, before they published, the nature of defendants' claim as to "Hyperion," for in order to ascertain what was the edition of 1839, they compared a copy of defendants' edition of 1869, which claimed a copyright, with a copy of

the edition of 1839 that was in the library at Cambridge. The comparison was imperfect, and the plaintiffs published in their edition 183 variations of the early edition. These variations were in defendants' edition of 1869. The plaintiffs seem to have been mistaken in the assertion of their circular of April 13, 1882, that "we obtained a copy of the 1835 edition of 'Outre-mer' and a copy of the 1839 edition of Hyperion,' and ours are exact reprints of these two editions."

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In Like v. McKinstry, 4 Keyes, 409, the court declared: It is, however, not enough that the words spoken were injurious and were untrue. It must also be shown that they were malicious. It is entirely clear that if a person have, or believe that he has, a claim to property offered for sale to third persons, and in order to prevent claim according to its true import, no action will their purchasing he in good faith discloses his lie against him.

It must, therefore, appear that he acted with malice in ascertaining that he had a title."

In the same case in the Superior Court, 41 B., 190, Judge Miller had held that the plaintiff must show that the words were false and that they were uttered maliciously.

In Kendall v. Stone, 2 Sandf., 284, the Court said, "The plaintiff assumes the burthen of proving not only special loss, but actual malice."

În Gerard v. Dickenson, 3 Co. R., 309, it was resolved that a defendant was not liable for saying that she had an interest in a manor, in fact the property of the plaintiff-"For if an action should lie when the defendant herself claims an interest, how can any make any claim or any title to any land or begin any suit or seek advice or counsel, but he should be subject to an action, which would be inconvenient?"

But it was also resolved that an action did lie, if the plaintiff alleged and proved that the defendant knew that the interest she claimed depended upon a deed, which she knew to be forged. In

such a case malice would be proved.

given evidence to show that the claim made by

And so in the present case, if the plaintiffs had

defendants was groundless and proven by them to be groundless, there would be room to assert that the evidence tended to show malice. More than the mere falsity of the claim would appear. The jury might find that the defendants had intended to stop the sales of plaintiffs' books by means of falsehood.

The plaintiffs' case assumes that it is impossible that the publications of the original editions of "Hyperion" and "Outre-mer" should be an infringement of the copyright of books of the same names published after the expiration of 42 years, and that the defendants could not have believed that such publications were infringements. In fact, however, speaking now only of " Hyperion," the plaintiffs did not publish only the original edition. Their publication contained the 183

variations referred to. These had been made

by Mr. Longfellow. They were part of the ground of his claim of copyright. The defendants' claim as to copyright rested upon these variations. The counsel for plaintiffs agrees that there can be no copyright in such variations, inasmuch as is asserted they do not affect the substance of the original work. I refrain from passing upon this position, to avoid incidentally passing upon what is copyright and what is an

infringement of it, when the Court has no power to pass upon such matters directly.

I prefer to say that the issue at this point turns upon a matter of law and that a mistake as to the law, when made by one in a claim of right in himself and appearing to be only a mistake, is not malicious and could not be found by a jury to be malicious.

In Mildmay's case, I Co., 421, it was held that in slander of title for declaring that a third person had a lease of 1000 years of the plaintiff's land, when the lease was void at law, it is no defence that such a lease was actually made. The note to the case observes that the words were spoken by a person not interested in the property and the case itself gives as the reason of the decision, that the defendant had taken upon himself the knowledge of the law meddling with a matter that did not concern him.

There was no testimony tending to show that any part of the defendants' claim in respect of Hyperion" was not made honestly or that the

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defendants knew or believed that the claim was without validity.

AMERICAN COPYRIGHT LEAGUE. THE following circular has been sent to the members of the American Copyright League :

NEW YORK, December 27, 1886.

To the Members of the American Copyright League.
At the recent meeting of the " American Copy-
right League, held in New York, on the 2d day
of December, 1886, the following resolution was
unanimously adopted:

on

"Resolved, That the Secretary of the League be instructed to request the Committee Patents to report to the open Senate the League Bill as originally presented by Senator Hawley, as well as the Chace Bill, together with the committee's urgent recommendation that an early date be fixed for their joint consideration." In order that the friends of the movement may understand the exact scope and intention of this resolution, a brief review of what the League has been doing during the past year is necessary.

At the last session of Congress, in obedience to the commands of the organization, the Executive Committee introduced into Congress, through the assistance of Senator Hawley, a bill, since known As to " Outre-mer" the defendants proved that as the Hawley Bill, a copy of which is printed in the edition published by plaintiffs contained connection with this statement. The bill had twenty-four variations from the original editions been drafted by the Counsel and Executive Comand which were in defendants' edition. The wit-mittee after careful examination of the Statutes ness who spoke to this was allowed to put in evidence a written list of these variations, without producing the books that had been compared. The counsel for plaintiff objected to the list as secondary evidence, maintaining that the books should first be placed in evidence.

The objection does not appear to be valid. The plaintiffs had previously undertaken to prove, by a witness called by them, that their edition was a reprint of the original edition, without producing that edition. This justified evidence from the defendants on the subject, without their production of the books. The alleged libel as to "Outre-mer" was in part an advertisement by defendants that their edition was the only Revised Copyright edition. What has been said of defendants' claim as to Hyperion" applies to their claim of copyright in "Outre-mer." The plaintiffs gave no testimony tending to show that the defendants were malicious in making their

claim.

The defendants also advertised of editions of 'Hyperion" and "Outre-mer," which they were about to publish, as follows:

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They contain all the changes and revisions made by Mr. Longfellow in later years and are the only authorized cheap editions in the market."

The plaintiffs claim that the latter statement was false as to the re-publication by plaintiffs of the original edition. Still bearing in mind that the plaintiffs published in their editions changes and revisions that had appeared in the editions of defendants published by Mr. Longfellow's authority, there was no proof that the claim of defendants as to sole authority was malicious.

In my opinion the admission of the certificate by the Librarian of Congress was erroneous. That does not call for a reversal, as the admission does not affect the question here discussed, of whether the plaintiffs had given any testimony tending to show malice. Because they did not, the judgment appealed from should be affirmed, with costs.

of the United States bearing on copyright and a thorough investigation of the history of the negotiations between England and the United States at the time of the proposed treaty on the subject; and the bill as finally drafted was supposed to, and no doubt did, represent the views of all American authors interested in the subject, as well as those of all disinterested persons who had given it attention.

The principal aim of the bill was to establish complete reciprocity between England and the United States. England, it is well known, now stands ready to give copyright to any foreign country which will accord the same right in return, and the effect of the passage of the Hawley Bill would have been that English authors would have had the same literary property rights in this country that American authors possess, while in England American authors would have received like privileges.

As was stated in the argument in behalf of the bill submitted to members of Congress by the League, "Many of the measures of international copyright heretofore proposed have suffered under the disadvantage of being incumbered with details. The proposed measure is perfectly simple, and, after having been very carefully considered, is believed to be entirely effective for its purpose. The principle on which it proceeds is to put a foreign citizen on an equality, as regards copyright, with the American citizen, when the American citizen has equal copyright with that foreign citizen under the laws of the latter's country. This scheme is very much better for many reasons than the alternative of giving the foreign citizen exactly the rights which his country allows our citizens. In consequence of the fact that foreign copyrights are generally more liberal than our own, we shall get under the proposed scheme more than we give. As regards Great Britain, whose copyright is most important to our authors, the exchange will be about equal."

The design of the bill also was to eliminate wholly from the discussion any question of protection or free trade. It was felt that the inherent difficulty of establishing a reciprocal system

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