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There is even a sentimental advantage in making our merchant flag again familiar in the South Atlantic, the South Pacific and Caribbean. After all, isn't it true that trade is the practical molder of political and social bonds? Doesn't experience show that the clear interest of a people or group of peoples will very often shape the development of their national ideals? Latin America as a whole is closer to Europe than it is to us; nevertheless, all the American peoples have a community of political ideals. All but one of the nations on the two western continents have achieved independence through struggle. Our governments are in every instance dedicated to self-government and to peace. Conditions to-day make a mutual understanding by the people of the Americas more than ever imperative. No longer can we be sure that we can pursue these ideals unchallenged. The peoples of these great republics should know each other, and by such knowledge gain confidence and power of coöperation. They should stand united to preserve and carry on the ideals of freedom and self-government. No patronizing, condescending leadership is implied in any program of this sort, but a willingness to work together, each doing its full share. To do our full share we should strive to develop our trade with them as soundly and fully as possible so as safely to strengthen the economic independence of the western hemisphere.
COPYRIGHT AND PLAYRIGHT
Address by Hon. Samuel J. Elder, November 23
We live under two different kinds of law, Common Law and Statute Law. The former is that great body of law which was not promulgated by legislative authority but grew up from custom and decision of Courts, and which is supposed to have a principle for every possible case. It has been compared to the atmosphere by which we are surrounded and from which we never escape. It is not necessary that a precedent should be found for each new set of facts as it arises, because some principle of law is supposed to apply to all circumstances and will be worked out and applied by the Court in each individual instance. Statute Law is the attempt of the Congress and Legislatures to enact into definite form the growing and changing aspirations and wishes of the sovereign people. That it is often conflicting and contradictory is not to be wondered at. However much it blunders, in the long run definite advance is made and crystallized into final form.
The protection of literary property rests both upon Common and Statute Law. When a man writes a book, or a play, or a piece of music, or paints a picture, it is his. No one can take it from him. The Common Law protects it. In the case of a book, he may read it to his friends, leave it with them for criticism, print it and privately circulate copies, and it still remains his. No one else can print or publish it; but if he sells a single copy, or offers one for sale, or permits general and unrestricted distribution of it, without taking certain steps prescribed by the Copyright Statute, then he has lost control of it and any one else may publish and sell it. He has dedicated it to the world and it has fallen into the public domain. Thus it will be seen that an author or artist is
the owner at Common Law in perpetuity of his work until he wishes to make some profitable use of it, and that as soon as he does so he loses his right altogether, unless he conforms to the copyright statute, and in that case his right is cut down to a term of years. In order to secure copyright, that is, the right to multiply and sell copies, he must part with his perpetual right. This was not always the law. Down to 1709 an author could publish his work, i.e., make it public, and yet he and his heirs could control it for all time. There seems to be no question that rights in perpetuity in published works existed down to the enactment of the Statute of Anne, and this statute, which was enacted to assist literary men by giving them effective and drastic remedies against pirates, destroyed their Common Law right altogether.
The Statute of Anne
This act was entitled, "An Act for the Encouragement of Learning," and provided for the forfeiture of all illicit sheets and for a penalty of a penny a sheet upon all such copies, and that the sole right and liberty of printing for the term of twenty-one years in the case of books already published, and no longer, and for fourteen years with a right of renewal for fourteen years more in the case of books thereafter published, and no longer, should vest in the then owners of copyright and in subsequent owners. But it also provided that nothing in the Act should prejudice or confirm any right that any person claimed to have to the printing or reprinting of any book. Here was statutory protection for you. All that authors had sought was for severe remedies against piracy, and those were given them for a limited period. No one at the time seems to have supposed that this Act would receive the construction which it afterwards did receive. The twenty-one years ran out in 1730, and after that time injunctions were issued as if the Common Law rights were still in existence. Injunctions were issued by the Court with reference to "The Whole Duty of Man," Pope and Swift's "Miscellanies," and Nelson's "Festivals and Fasts." In 1739, Milton's "Paradise Lost" was before the Court, the book having originally appeared in 1667, and the Court granted an injunction in favor of the owner against a reprint.
Then came trouble. In 1760, a lawyer named Yates appeared on the scene and raised the question whether the Act of 1709, containing the words "and no longer," did not confine an author's rights to the twenty-one years. The question was raised with reference to certain volumes of the "Spectator," but the Court refused to decide it, having discovered that the suit had been "pellucidly" brought for the purpose of testing the meaning of the statute. But in 1789 the question came up squarely concerning Thompson's "Seasons," the famous case of Miller v. Taylor. Three judges, Mansfield being one of them, held that there was perpetual copyright, and that the Statute of Anne did. not take this right away. Yates, who in the meantime had been raised to the Bench, dissented.
In 1774, however, the case of Donaldson v. Becket arose, and went to the House of Lords, by whom it was submitted to all the judges. Blackstone was one of them, and Lord Mansfield, who had been raised
to the peers, was another. A notable thing happened on which the history of copyright turned. Mansfield, having rendered a decision in the court below on the same question, declined to sit in the case in the Lords, reducing the number to eleven. A result was reached not unlike that reached by the Electoral Commission, some years ago. All the judges but one agreed that there was Common Law right in unpublished manuscripts. Eight to three, they decided the Common Law did not take the right away on publication, but on the question whether that right was lost by the Statute of Anne, the judges decided in the affirmative, six to five, and away went Common Law copyright.
The Passing of Perpetual Right
This decision has been so frequently criticized that it is only fair to say that the accident of this narrow majority is not the real basis on which copyright law rests. Unquestionably a reversal would have been had if it had been an accident, or legislation would have been secured which would have reëstablished the Common-Law rights, but, from that time down to the present, Parliament and Congress have not returned to perpetual right.
The United States has followed in precisely the same line, and all civilized countries have taken the same views. They vary somewhat as to what the term of copyright shall be, but no country, except Mexico, has given or now gives perpetual copyright. It may be doubted whether the protection of literary men even there is of the highest value.
This same law question arose in the United States, in 1834. In that year a case which will seem strange to lawyers, Wheaton v. Peters, arose concerning a volume of the U. S. Reports, and the contention was there made that authors' rights were perpetual. Our Court, after an elaborate review of the decision, determined that since the Statute of Anne there was no Common-Law copyright, and that this rule came to the United States as part of our Common Law.
Our earliest copyright laws in the United States were secured while we were still colonies. Noah Webster, being about to bring out his now famous "Speller," went to the legislature of Connecticut and asked for protection for the work, and the first American copyright statute was passed in 1783. Going from colony to colony, he induced twelve of the thirteen colonies, all except Delaware, to enact similar statutes. All of these acts were modeled upon the Statute of Anne. The Massachusetts Act provided that two copies of the work sought to be protected should be deposited with the librarian of the University at Cambridge, and that the production of his receipt therefor should be the condition of maintaining suit against infringement. Our Harvard friends will pardon me for recalling that Rev. Timothy Dwight, of Northampton, then a member of the Massachusetts legislature and afterwards president of Yale College, from which Noah Webster also came, took a prominent part in the shaping and enactment of that statute.
We moved into our new building February 15, 1915, and the Board of Governors have thought that members might be interested in this diagram comparing the profit or loss for the first eight months of the new Clubhouse, from March 1, 1915, to November 1, 1915, with the corresponding eight months of the year just ended, March 1, 1916, to November 1, 1916.
The dotted line shows the eight months of 1915. The black line shows the corresponding eight months of 1916. As these lines rise above the horizontal line X-X they indicate profit, and as they drop below X-X they show loss. The fact that the black line, although in several months falling below X-X, and therefore indicating a monthly loss, yet nevertheless throughout practically the whole of the period remains well above the dotted line shows the improvement made this year in bringing the expense of running our new Clubhouse within our income.
During the first eight months of the new Clubhouse there was a total operating deficit of $13,477.21; during the corresponding
NOVEMBER 20, 1916.
eight months of 1916 the operating deficit was $358.37.
Upon the opening of the new Clubhouse, the Board of Governors, and more particularly the Executive Committee and the House Committee, were suddenly confronted with many financial problems which it has taken time to work out. That these questions are being studied one by one and successfully solved is proved by the almost nominal deficit of $1,421.19 for the first entire year in the new Clubhouse.
The Club members are to be congratulated upon the showing, and the thanks of all of us are due to the efficient work of the Executive Committee, and particularly to the zeal and tireless efforts of our excellent House Committee. Both of these committees are entitled, in my judgment, to the confidence and support of our membership.
During the year the application of the special building assessment of $5 has resulted in retiring $29,850 of the Club deben