Thursday, December 08, 2005

War, The Public Domain and Chris Meyer

The posting from two days ago on the Confederacy had an issue I wanted to save for this one, namely, the concept of the public domain arising out of war. In the Goetzel opinion discussed in that blog, a Confederate court in Mobile Alabama found that a book on military tactics created and published in the North and in the public domain before the Civil War was in the public domain in the Confederacy, despite the issuance of a Confederate copyright registration. The court wrote: "I do not think the formation of the Government of the Confederate States, diminished or affected the rights of the public or increased those of General Hardee in this respect," and that "The publication of the Philadelphia edition of 1855 was made when this country was part of the United States. It was then a publication in this country, and it was as much to the public in Virginia or Alabama as the public of Pennsylvania."

The status of Southern authors in the North during the War was unaffected at one level: because Southerners were regarded as "rebellious citizens" rather than as "enemy aliens," their works were still protected in the North if they complied with formalities applicable to all authors. That was, as a practical matter, impossible. Russell Sanjek wrote that after the War was over a number of Southern authors "re-copyrighted" their works with the Library of Congress, but I don't know exactly how that could be done.

During World War I, compliance with formalities by foreign authors was also very difficult. In 1919, President Wilson signed legislation granting retroactive protection, provided the foreign country did the same for U.S. authors, and provided that within 15 months of March 3, 1921, the foreign author complied with the requisite formalities, Act of Dec. 18, 1919, P.L. No. 66-102, 66th Cong., 2st Sess., 41 Stat. 368.

There was something else that occurred in World War I, and that was the establishment of an Office of the Alien Property Custodian, abolished in 1934, but resurrected for World War II. Legislation permitted this office to seize title to the intellectual property of enemy authors. The office was very active during WWII. By fiscal year 1944, 185, 102 titles had been indexed, with 146,690 titles waiting to be indexed. The records are in the Copyright Office. Among the works title to which was seized were Puccini operas, films like the Blue Angel, and Mein Kampf, along with over 700 scientific books and 3,200 periodicals.

At the end of WWII, the War Claims Act of 1948 was passed, providing, among other things, for the satisfaction of U.S. War Claims from the funds obtained from the sale or licensing of seized intellectual property. At the same time, in many cases title to copyright was returned to the rightful foreign author or his or her heirs. That leads to the late Chris Meyer and the 1994 GATT implementing legislation. When I met Chris, he was an attorney in the Copyright Office; he subsequently left and went to the PTO's Office of Legislation. Chris was one of a number of truly outstanding public servants and brilliant copyright scholars in a Copyright Office known for brilliance. Another was the late Lewis Flacks, long the Office's international specialist, an eccentric's eccentric and a national treasure.

When I was counsel to the House IP subcommittee, Chris was still at the PTO and in 1994, he lobbied us for this exception to restored copyrights, contained in 17 USC 104A(a)(2), precluding restored copyright in "Any work in which the copyright was ever owned or administered by the Alien Property Custodian and in which the restored copyright would be owned by a government or instrumentality thereof... ."

I italicized "and" because Chris's concern was not with works created by individuals, but with those that the governments of Germany and Japan might claim ownership in, and might want to use that ownership to suppress dissemination of the work. That same concern is what led to Section 201(e) of the 1976 Act with the Soviet Union's joining the Universal Copyright Convention. Many voiced concerns over the Soviet issue, but there were few who were aware of the Alien Custodian Office and Chris was one of those few: a rare, wonderful man, whom I miss.

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