VI. Some General Considerations
Although copyright records are national documents, the operation of
a national copyright law can at times produce records of interest to students
of another country. Even when the records themselves do not contain
information about the publication of foreign works, the international
copyright situation is always a principal factor in publishing history.
Whenever two countries employ the same language, authors in one country
sometimes deliberately publish their works first in the other, in an effort to
forestall unauthorized (or "pirated") editions. In regard to English-speaking
countries, this situation existed between England and Ireland in the
eighteenth century (since the English copyright law did not extend to
Ireland until 1801) and between England and the United States in the
nineteenth (since the American law did not include English works until
1891). Many famous English books of the nineteenth century were first
published in America because, even though the works could not
be copyrighted in the United States, the authors could at least gain
something from the
American market by selling advance sheets to an American publisher; many
famous American books were first published in England because American
authors could secure English copyrights during most of this period only if
they published their works first in England or were residents of
England.
[57] A great deal of
bibliographical and literary research has been directed toward this aspect of
copyright history — from I. R. Brussel's
Anglo-American
First
Editions (1935-36) to individual studies of the trans-Atlantic
publication of Scott, Marryat, Cooper, Irving, Dickens, Tennyson,
Longfellow, and Mark Twain,
[58]
among others. But copyright records are not involved, except when a
country allows foreign works to be registered or deposited. American titles
do appear in the nineteenth-century British records; but foreign titles are
listed in the American records (under authority of the 1891 act) beginning
at different times for
different countries: copyright privileges were extended to some countries
(e.g., France and England in 1891, Germany and Italy in 1892) by
individual Presidential proclamations, to others (China, Hungary, Thailand)
by bilateral treaties, and to still others through the Mexico City Convention
(after 1908), the Buenos Aires Convention (after 1914), and the Universal
Copyright Convention (after 1955).
[59]
Despite the differences between the English and American copyright
laws and records, the two countries have held the same basic traditions of
copyright. The English concept of perpetual common-law copyright in
unpublished work and limited statutory copyright in published work
(implying that copyright is not a natural right of authorship), established in
Donaldson v. Becket (1774), formed the
tradition
inherited by the United States and supported judicially in
Wheaton v. Peters (1834). The philosophy of
copyright which exists in any country naturally affects the kinds of records
that accumulate, but not their thoroughness, for compulsory registration and
deposit are not necessarily tied to statutory provisions for limited-term
copyright. Further-more, official copyright information not found elsewhere
may be embodied in court decisions; thus the judicial process by which a
national attitude toward copyright is evolved serves at the same time to
record
specific facts about the individual books which occasioned the decisions.
Changes in the law or its interpretation may not always result in changes,
from a practical point of view, in the bibilographer's approach to the
records; but since the records are a creation of the law, shifts in policy will
usually alter the theoretical significance of particular inclusions or
omissions.
The most striking conceptual change, since the Statute of Anne, was
effected in the 1911 British act by removing unpublished works from the
realm of common law; a similar provision has been proposed in the
copyright revision bill in the United States (H.R. 2512, S. 597, 90th
Congress, 1st session).[60] If this bill
is passed as presently written,
all works, unpublished as well as published, come within the scope of
statutory protection, and the term of copyright is the same for both
— the
life of the author plus fifty years. Bringing unpublished works under the
statute and basing the term of protection on the author's lifetime will result
in the recording of useful biographical information for literary historians.
Both registration and deposit, however, are specifically stated not to be
conditions of copyright protection. Registration is permissive rather than
compulsory and may be performed at any time during the term of copyright
(though it is a prerequisite for a suit for infringement); deposit of two
copies within three months of publication is requested for the Library of
Congress (enforceable upon the Register's demand). Under these
regulations, most copyright holders will see the value of prompt registration
and deposit, and the bibliographer will find no great change in the
information he can derive from the
records. At the same time, the view that copyright protection is not
dependent upon any administrative technicalities of registration —
with
the consequent permissive nature of the registration procedure —
means
that the records which the bibliographer searches fall short, by legal
definition, of constituting a list of all copyrighted works.
Bibliographers and literary historians do not often have the
opportunity to document their research with sworn testimony, and evidence
from copyright records therefore comes to the scholar with a kind of
guarantee he rarely encounters. Information in the American
Catalogue of Copyright Entries, for example, can be
presented
as prima facie evidence in a court of law; thus when a currently unlocated
book is recorded as having been deposited on a particular day, the
bibliographer, even though he may wish he personally could see the book,
has the strongest assurance that it did actually exist at that time. No
materials except official documents can carry such authority, and for this
reason copyright records are a uniquely important source for the
bibliographer. The English and American records, as described here, vary
from period to period in their completeness, but it is evident that copyright
registration has been carried out more punctiliously and in greater detail in
the
United States than in England and that the American records, especially
after 1870, constitute an unparalleled storehouse of bibliographical facts.
The Copyright Office of the Library of Congress should be familiar
territory to every bibliographer; as a center for bibliographical research into
American books (and many foreign ones after 1891), there is no other place
equal to it.[61]
The convenience of using the English and American copyright records
has been greatly increased by the publication of substantial portions of
them. Even when published indexes do not carry the official sanction which
the Catalogue of Copyright Entries does, they serve a useful
purpose. It is to be hoped, therefore, that the remaining sections of these
records can be published, either as official governmental projects or as
separate volumes prepared by individual scholars. For English copyright,
the Bibliographical Society has undertaken to publish part of the remaining
records, beginning with David Foxon's edition of the Register
for 1710-46; for the rest of the period before 1842 and after 1907, at least
the kind of index which has been published to cover the years from 1842
through 1907 should be made generally available. As for the American
records, the two unpublished segments present different problems. The
record books from 1870 to 1891, which are complete and
orderly, offer little difficulty; the essential facts in each entry could be
transcribed and indexed (perhaps in a form similar to Dramatic
Compositions), and the resulting volumes could be issued
seriatim. But for the district court records, from 1790 to
1870,
all the surviving documents (including the title pages) should be thoroughly
indexed on cards before any volumes are published, since the nature and
physical arrangement of these materials are such that information relevant
to one period and state can turn up at a number of places. The published
entries could then be arranged chronologically by states, with one
master-index, or else the master-index itself could be constructed to contain
the information from the entries: the most important requirement is that all
titles registered in any given period, regardless of the state in which the
registration took place, eventually be brought together in one alphabet. Such
projects, though expensive and time-consuming, are
justifiable and desirable. The publication of these entries would facilitate
and stimulate bibliographical and historical research into the
Anglo-American cultural heritage; it would also insure the preservation of
the most detailed official record ever produced of a nation's literary and
artistic product.
