(C. D. 785)

#### J. E. Bernard & Co., Inc. *v.*United States

United States Customs Court, Second Division

(Decided June 24, 1943)

*Wallace & Schwartz; Barnes, Richardson & Colburn {Joseph Schwartz,*of counsel) for the plaintiff.

*Paul P. Rao,*Assistant Attorney General *{Samuel D. Spector, Frank X. O’Donnell, Jr., Richard H. Welsh,*and *Richard E. FitzGibbon,*special attorneys), for the-defendant.

Before Tilson and Kincheloe, Judges; Lawrence, J., not participating

Kincheloe, Judge:

This suit is for the recovery of certain customs-duty alleged to have been wrongfully assessed on an importation of 500 sets, 3 volumes per set, of a-book entitled “Pathology and Therapeutics of the Diseases of Domestic Animals.” The title page gives-the names of Dr. Franz Hutyra, Dr. Joseph Marek, and Dr. Rudolph Manninger, as the authors of the book, and further describes the book as “Fourth English Edition edited by” J. Russell Grieg, with the collaboration of J. R. Mohler and Adolph Eichhorn. The edition also-bears the date 1938.

*21The books were imported from England in sheets and bound in this country by the importer, Alexander Eger, of Chicago. They were classified and assessed for duty by the collector as of other than bona fide foreign authorship at 25 per centum ad valorem under paragraph 1410 of the Tariff Act of 1930, which, so far as pertinent, reads as follows:

> Par. 1410. Unbound books of all kinds, bound books of all kinds except those bound wholly or in part in leather, sheets or printed pages of books bound wholly or in part in leather, pamphlets, music in books or sheets, and printed matter, all the foregoing not specially provided for, if of bona fide foreign authorship, 15 per centum ad valorem; all other, not specially provided for, 25 per centum ad valorem: * * *.

The claim of the plaintiff is that the books are of bona fide foreign authorship, dutiable as such at only 15 per centum ad valorem under said quoted provision.

The first witness for the plaintiff was Robert S. Wolf, who stated he was connected with Alexander Eger, publisher and seller of veterinary books, and importer of the books in question, and who identified a 3-volume book entitled “Pathology and Therapeutics of the Diseases of Domestic Animals” by Hutyra, Marek, and Mannin-ger, made from the unbound sheets taken from this shipment. Whereupon said book was received in evidence as collective illustrative exhibit 1. (R. 4)

The witness stated further that this work was originally published about 30 years ago as by Hutyra & Marek; and that the present revised edition, although called “Hutyra, Marek & Manninger,” is still known popularly as “Hutyra & Marek.” (R. 4)

Plaintiff’s next witness was Dr. Adolph Eichhorn, connected with the Bureau of Animal Industry in the United States Department of Agriculture. He has been director of the Animal Disease Station located at Beltsville, Md., for 4 years. He stated that he is a veterinarian and obtained a degree from the New York University in 1900. When referred to collective illustrative exhibit 1 he stated he only assisted in editing this last edition of the book (exhibit 1). Also that he is well acquainted with Dr. John R. Mohler, who is his superior in the Department of Agriculture, and who participated in the preparation of said book to the same extent as he did. As to the nature of such participation, his testimony is as follows:

> Q. Now will you please state gust what your activity was in connection with the publication of this book? — A. After the British Publishers had agreed to publish this particular edition, we were approached by the Editor in Chief, Dr. G-reig, whether we would not undertake to look over the manuscript, in order to correct it, and edit it, and make such annotations which might be of advantage for the veterinarians in this country.

> Q. And did you agree to do that? — A. We have agreed to do that.

> Q. That is you, and Dr. Mohler? — A. Dr. Mohler, and I.

> *22Q. Then what did you do? — A. We received manuscripts from time to time, in' parts of course, and first Dr. Mohler went over the manuscript, and later I received the same and made corrections as far as spelling and other things, particularly with regards to dates and names which were at times not exactly stated,, and also a few annotations have been made with regard to conditions prevailing in this country, in order to bring the work up to date insofar as the veterinary-profession is concerned in the United States.

> Q. In making these annotations did you contribute any original ideas? — A. No,, we have not. (R. 10, 11)

The witness further stated he was personally acquainted with Dr-Franz Hutyra, who was the dean of the Royal Veterinary Colleger Budapest, Hungary, and who died 4 years ago; that Dr. Hutyra was; first assistant in one of the departments, and that he (the witness) was his assistant. That he also knows Dr. Joseph Marek, who retired 2 years ago as Professor of Internal Medicine at the Royal Veterinary College, after holding the chair for more than 30 years; and that he also knows Dr. Rudolph Manninger, who is Professor of Bacteriology at the same institution. (R. 14)

As to who were the authors of the book in question, the witness-stated that Hutyra was the author of the first volume, which deals with infectious diseases of domestic animals; that after Dr. Hutyra’s death Professor Marek revised it in its present form; and that the other 2 volumes were prepared by Professor Marek, and that even the-present edition,has been revised and brought up to date by Marek.

The same witness stated further that the original authors of the ideas embodied in the book are Hutyra, Marek, and Manninger. (R. 15) Also that he knows Dr. J. Russell Greig, who is in charge of research in the laboratories maintained in Scotland, pertaining to-•diseases of animals, and that Dr. Greig’s participation in this book was as editor in chief, selected by the publishers in Great Britain. (R. 15) Also that the book was originally written in Hungarian, but that the present edition was in Gorman, and was translated by two-British veterinarians, Dr. C. F. Marshall and Dr. Constance M. Ottley, as stated in the preface.

Dr. Eichhorn described the nature of the annotations made by himself and Dr. Mohler, as follows:

> Annotations have been made only in the first volume, as far as the volume-dealing with the infectious diseases is concerned, and the annotations were very few. I dare say probably not more than 20 in all, and they consisted principally of editorial remarks pertaining to the American procedure of controlling the disease, or the knowledge which has been obtained through research in this country with regard to these respective diseases.

He stated further that they (he and Dr. Mohler) did not originate- or create any part of the book, and that such annotations as made by them had to be submitted to the authors for their approval; that he did this work in a private capacity and not in connection with his duties as an employe of the U. S. Department of Agriculture; that the-*23book is accepted as a text book in all the veterinary institutions in the United States, and that it is considered the most important book of its kind published. (R. 17, 18)

On cross-examination Dr. Eichhorn stated that he agreed with the following taken from the preface of the book by Dr. Greig, on page V thereof:

> * * * that I had as my associate editors Dr, John R. Mohler and Dr. Adolph Eichhorn, men who in their particular spheres are outstanding in international repute and, what perhaps is as important, are also my personal friends. They have made a close scrutiny of the entire text and many of the parenthetic notes which are subscribed “Editor” have been contributed by them.

Dr, Eichhorn also stated that he did not revise the text, but only made annotations, and made no change in the language used in the text itself. (R. 19)

It was agreed by the Government on the record that neither Dr. Franz Hutyra, Dr. Joseph Marek, Dr. Rudolph Manninger, nor J. Russell Greig, are or were at any time citizens of the United States, but that John R. Mohler is an American citizen. (R. 25, 29)

The only evidence introduced by the Government consists of photostatic copies of 34 pages of vol. I of the book in question, which were marked collective illustrative exhibit 2. In connection therewith it was agreed between counsel that John R. Mohler made certain annotations to vol. I of the book (collective illustrative exhibit 1), and that such annotations are marked with red crayon on the margin of collective illustrative exhibit 2. (R. 28)

The contention of the Government is that the work contributed by Dr. Mohler and Dr. Eichhorn is the product of thought and mental toil, and is therefore in the nature of authorship, and does not merely consist of decisions as to what to include and what to omit from the-original manuscript.

The whole question presented herein, therefore, is whether the par-, ticipation of said American citizens Mohler and Eichhorn in the preparation and publication of the book in question constitutes authorship under the common meaning of that term and the decisions of the. courts. If so, the collector’s classification of the merchandise as books of other than bona fide foreign authorship would appear to be correct; if not, the plaintiff would be entitled to have its claim sustained.

In *J. E. Bernard & Co., Inc.*v. *United States,*6 Cust. Ct. 84, C. D. 433, this court had before it the question of whether an American citizen collaborating with Englishmen in the preparation of the American section of the Historical Atlas contributed work which constituted authorship. The books were entitled the “March of Man,” and were classified and claimed dutiable under the same tariff provisions as in the instant case. It was stipulated in that case that *24tbe Historical Atlas was prepared by George Philip and Ramsey Muir, citizens of England, with the collaboration in the American section of Robert McElroy, a citizen of the United States. The court found under the title "Time Chart List of Sections,” consisting of 7 sections or charts, that 5 of them devoted about 1 column each of printed information as to the history of Latin America, and that 3 of the sections or charts devoted about a column each to the subject of the United States of America. In holding the book not properly dutiable as of bona fide foreign authorship, the court stated as follows:

> If these two parts represent the work or collaboration of the American citizen McElroy, we can only say that they constitute very substantial parts of the printed historical text contained in the book, exhibit 1.. The part of the book of foreign authorship is undoubtedly much greater than that of American authorship but, under the decisions cited, *supra,*obviously the books under consideration cannot be considered as wholly or substantially wholly of bona fide foreign authorship.

No claim was made by the plaintiff in said case that the contribution of said American citizen was not in the nature of authorship, but that the book was chiefly of foreign authorship. The Government contends, nevertheless, that that case is authority for holding that any written material which is the product of thought and mental toil constitutes authorship, and that therefore the notes, annotations, and remarks of the American citizens in the present instance should be so considered.

In *Drury*v. *Ewing, 7*Fed. Cas. 1113, a copyright case, it was said a book “must be the product of thought and mental toil.” While that may be the proper interpretation of a book under the copyright laws, we think it is too broad to apply to the term "authorship” under the tariff, for obviously any compilation or annotation requires some thought and mental effort or toil.

We quote the following definitions from Webster’s New International Dictionary, edition 1936, as bearing on the question at issue.

> *author, n.*1. The originator or maker of anything; hence, efficient cause of a thing; creator; originator. 2. One who composes or writes a book, story, document, or the like; a composer, as distinguished from an editor, translator, or compiler; also the writings of an author.

> *author*is sometimes, by extension, applied to one who compiles for publication material which in its totality constitutes an original contribution. (Page 185)

> *authorship, n.*1. *a*Profession of writing books, stories, articles, etc. 6 The function or dignity of an author. 2. Origination, esp. of a literary production; as, the *authorship*of *Piers the Plowman;*also, instigation; state or act of creating or causing; as the *authorship*of a crime.

> *editor, n.*1. A publisher of a book. *Ohs.*2. One who edits; as: *a*One who prepares the work of another for publication; one who revises, corrects, arranges, or annotates, a text’, document, or book; as, an *editor*of early English ballads; an *editor*of Aristotle, *b*One who directs or supervises the policies and contributions of a newspaper, magazine, work of reference, or the like; as, the *editor*of the London Times; the *editors*of an encyclopedia, c One who has editorial supervision *25of a part or a special department or feature of a publication; as, the financial *editor*of a newspaper; the philological *editor*of a dictionary, *d*One of the regular staff of a newspaper who writes editorials; — commonly called an *editorial writer*or in England *leader writer.*(Page 817)

> *annotate, v.*To furnish with notes, usually critical or explanatory; as, to *annotate*the works of Bacon; to make or write a note or notes about or upon.

> , *annotation, n.*1. Act of annotating. 2. A note added by way of comment or explanation; as, *annotations*on the text of an author; an *annotation*on a word, passage, or catalogue entry. (Page 108)

It will be seen from the foregoing definitions that authorship implies the creation and origination of a literary production, and is to be distinguished from the work of ah editor, translator, or compiler, and that an editor is one who revises, corrects, arranges, or annotates a text, document, or book, usually by way of comment or explanation.

In the present instance the testimony of Dr. Eichhorn shows that his, as well as Dr. Mohler’s, participation in the publication of the book under consideration was “only as assisting in editing the book,” and “to look over the manuscript, in order to correct it, and edit it, and make such annotations which might be of advantage for the veterinarians in this country”; and “made corrections as far as spelling and other things, particularly with regard to dates and names which were at times not exactly stated, and also a few annotations have been made with regard to conditions prevailing in this country, in order to bring the work up to date so far as the veterinary profession is concerned in the United States.” It was further shown by Dr. Eichhorn that neither he nor Dr. Mohler contributed any original ideas to the book; that the ideas in the book are those of Hutyra, Marek, and Manninger; that he and Dr. Mohler made only a few annotations consisting “principally of editorial remarks pertaining to the American procedure of controlling the diseases, or the knowledge which has been obtained through research in this country with regard to these respective diseases”; that they made no revisions in the text, or changes in the language of the 'text, but only annotations.

Furthermore, a perusal of the annotations made by Dr. Eichhorn and Dr. Mohler on the 34 pages of vol. I of said book (illustrative collective exhibit 2) shows that the said annotations consist in most instances of not more than about 3 to 6 lines on said pages, and that they are in the nature of editorial remarks, explanations, corrections, etc., as testified to by Dr. Eichhorn. And when it is considered that the books consist of a total of 2,429 pages each, and that said annotations of Dr. Eichhorn and Dr. Mohler were made to parts of only 34 pages thereof, and then only to the extent of an average of about 3 to 6 lines of said 34 pages, it will be seen that the said annotations contributed by them represent probably not more than one-fourth of 1 per centum of the whole printed text.

*26On the record, presented, therefore, we are satisfied that the said annotations contributed by said American citizens Eichhorn and Mohler, when taken in connection with the rest of the book as a whole, do not come within the tariff meaning of “authorship” under said paragraph 1410, and that the imported hooks may therefore be considered as of foreign authorship under said tariff provision. Note Abstract 29385 (66 Treas. Dec. 1095). But even were said annotations to be regarded in any way as in the nature of original authorship, in view of the small percentage of the book represented thereby, we think the books wohld nevertheless still be dutiable under the same provision as books substantially' wholly of foreign authorship.

The claim of the plaintiff herein that the books in question aré dutiable at only 15 per centum ad valorem under said paragraph 1410 of said act of 1930, as books of bona'fide foreign authorship, is therefore sustained. • The protest is however overruled in all other respects.