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A very liberal provision was that which authorized enemy owners, at the close of the war, to institute proceedings in equity against licensees for the recovery of compensation for the use and enjoyment of their patents, trade-marks or copyrights, and which authorized the courts to adjudge and decree a reasonable royalty, the amount to be paid out of the fund deposited by the licensee. They were likewise empowered to prosecute suits against other persons than licensees to enjoin infringements of their rights. The law did not specifically declare for the avoidance and suspension during the war of the rights of enemy subjects in respect to patents, trade-marks or copyrights, but its provisions were clearly based on the assumption that they were suspended. There was no thought, however, of annulling them or impairing their validity.
On the whole, the policy of the United States was more liberal than that of any of the governments mentioned. In view of the large number of valuable patents held in Germany by citizens of the United States, it was to the interest of the United States to deal liberally with the holders of German patents here in order to secure reciprocity of treatment by Germany. Favorable treatment of American patentees by the German Government was assured by reason of an even larger number of valuable patents held in the United States by German subjects.
The Status of Copyrights. Various questions in regard to copyrights held by persons of enemy nationality were raised by the war. Are belligerent governments bound to protect literary works and musical compositions of enemy authors who hold copyrights granted by such governments ? Are international copyright conventions terminated by the outbreak of war between the contracting parties, or are they merely suspended, or do they remain unaffected? What was the effect of the war on the International Copyright Union created by the Berne Convention? The various belligerents fall into two classes, so far as international copyrights are concerned: first, those which are members of the International Copyright Union, that is, those which are parties to the Berne International Copyright Convention of 1886; and second, those which are not. The majority
of the European countries belong to the first class; Russia, the Balkan states, Austria-Hungary and the United States fall within the second group.77 The rights of the citizens or subjects of these latter countries are regulated, so far as they are regulated at all, by individual treaties.78 The Berne Convention contains a stipulation to the effect that the convention shall not be abrogated by the outbreak of war between the parties, but that the parties may annul or suspend it so far as they are concerned."
In fact, although some of the belligerent governments treated the convention as having been suspended, it does not appear that any of the parties went to the length of treating the convention as abrogated, and, according to the principle laid down by the German Imperial Court, quoted above, in respect to the validity of the Paris Convention of 1883 Relating to the International Protection of Industrial Property, the validity of the Berne Convention was not affected by the war. In most of the countries, enemy copyright holders were accorded the same treatment accorded to enemy patentees, and what was said above in regard to the treatment of the latter applies equally to the former.
In the United States, for example, enemy subjects were allowed to file and prosecute applications for copyrights and pay the fees therefor, and American citizens were authorized to pay to enemy governments the necessary fees to obtain copyrights in such countries, provided a license for this purpose was obtained from the President.80 But by an order of the President, issued on April 16, 1918, these privileges were revoked and thereafter no enemy subject could obtain a copyright in the United States, and no citizen of the United States could file an application with an enemy government for a copyright.
77 Le Droit d'Auteur, June 15, 1917, p. 68. The United States, though not a member of the International Copyright Union established under the Berne Convention, is in the anomalous position of enjoying the privileges of the union in consequence of its having entered into reciprocal copyright conventions with prac. tically all the countries which are members. See Howell, "International Copy. right Relations of the United States," Yale Law Journal, Vol. 17, pp. 348 ff.
78 See an article on the general subject in the Solicitors' Journal and Weekly Reporter for October 24, 1914, pp. 4 ff. In 1898, the Attorney General of the United States gave an opinion that Spanish subjects were not entitled to the privileges of copyright conferred on Spanish subjects by proclamation prior to the outbreak of the war between Spain and the United States. That is, these rights were suspended by the war. H. Docs., 56th Cong., 2nd session, 1900-01, Vol. 99.
79 The text of the Berne Convention may be found in Clunet's Journal du Droit International, 1887, pp. 780 ff.; the revised convention of 1908 may be found in ibid., 1911, pp. 685 ff.; see also ibid., 1917, p. 791.
The Trading with the Enemy Act81 also provided that any enemy subject should be allowed to prosecute suits in equity to prevent infringements of copyrights in the United States in the same manner and to the same extent that he would be entitled to do if the United States were not at war. This liberal concession to enemy copyright holders was not accorded, however, by some of the belligerent governments. The German courts, for example, were not open to any enemy person domiciled outside the Empire. Nevertheless, under the decision of the Imperial Court referred to above, that the Paris Convention of 1883 was not affected by the outbreak of the war, the Berne Convention, to which Germany was a party, was equally unaffected, and consequently enemy copyright holders in Germany were fully protected. 82
The view, however, that the Berne Convention was unaffected by the outbreak of the war does not appear to have been accepted by all the belligerent governments. The question was raised in England by an application from an English publishing house for a license to publish an English translation of Prince von Bülow's Deutsche Politik The Comptroller-General of Patents ruled that all treaties, such as the Berne Convention, between Great Britain and Germany, were suspended by the outbreak of the war. That being the case, German authors were entitled to no protection under it against publication of their writings in England. The Trading with the Enemy Amendment Act of 1916 had created a copyright in such publications and had vested it in the public trustee. The ultimate disposition of the right and the royalties due thereunder was to be determined after the conclusion of hostilities. The granting of the license to publish the translation of Prince von Bülow's book was, therefore, recommended by the Comptroller, and it was accordingly issued by the public trustee. This action, however, was criticized by many persons in England as being in contravention of the Berne Convention.83
80 Trading with the Enemy Act, sec. 10, pars. a and b. In August, 1918, it was announced that the Alien Enemy Property Custodian would henceforth take over the royalties due on copyrighted enemy operas in the United States.
81 Sec. 10, par. g.
82 But certain French publishers complained to the Bureau of the Interna. tional Union that German publishers in fact were guilty of publishing and offering for sale in Switzerland pirated editions of works upon which French publishers or authors held copyrights in Germany, this in contravention of the terms of the Berne Convention. The Bureau in reply to these protests promised that energetic steps would be taken to prevent the circulation and sale of such publications in Switzerland. See the correspondence relating to the matter, in Clunet, 1916, pp. 551-555.
On the whole, however, there was a commendable disposition on the part of all the belligerent governments to respect the rights of enemy authors and publishers.84 In some cases the interests of their own citizens required it, and the advantages of a contrary policy would have been more than offset by the loss.
JAMES W. GARNER.
83 The president of the British Association of Publishers stated that numerous German works copyrighted in England were offered to British publishers for translation and publication. Those who offered them had in most cases not obtained permission from the German authors or publishers. The Association expressed the view that such an appropriation of enemy property rights was contrary to the Berne Convention and would throw discredit upon the British nation, which was then struggling for the maintenance of international obligations. The bope was therefore expressed that every British publisher would refuse to publish any book copyrighted in England by a foreign author unless his consent had been obtained. Clunet, 1916, p. 550.
84 Compare Howell in the Yale Law Journal, Vol. 17, p. 348.
THE NEUTRALITY OF SWITZERLAND
NEUTRALITY AND CONSTITUTIONAL DEVELOPMENT
THE recognition and guarantee of Swiss neutrality once definitely accomplished at the Congress of Paris in November, 1815, its subsequent progress was destined to be deeply affected by constitutional struggles in both federal and cantonal organizations.
It will be recollected that the initial change in the ancient Swiss alliance to a more modern form of government was introduced as the result of invasion by the French revolutionary forces, and that from April 12, 1798, to February 19, 1803, Switzerland was governed under the Helvetic Constitution imposed by the French, which created a military state with the cantons as administrative divisions only in accordance with Title II, section 15 of the instrument:
L'Helvétie est divisée en cantons, en districts, en communes et en sections ou quartiers des grandes communes. Ces divisions sont des divisions électives, judiciaires et administratives, mais elles ne forment point de frontières.
This constitutional arrangement yielded to the Mediation Constitution of Napoleon, which continued to be the country's basis of government from February 19, 1803, until it was formally repudiated December 29, 1813, at Zurich, as a consequence of the entry into Basel of the Allies eight days previously.
Although both of these constitutions were dictated by a foreign Power, they nevertheless introduced great and lasting reforms and laid a tangible foundation to which the country's subsequent development owes much. Perhaps the most important of these reforms was the abolition of subject territory in the constitutional plan, and the recognition of equal and independent cantonal states only within Swiss borders.
Napoleon's Mediation Constitution in fact completely reorganized the country. It is entitled Acte Fédéral de l'An 1803 and it formed