The Hon. FLORIAN LAMPERT, CITY LIBRARY, Springfield, Mass., February 7, 1925. Chairman House Committee on Patents, House of Representatives, Washington, D. C. DEAR SIR: I want to call your attention to a practical difficulty that would result from the provision in the so-called Solberg copyright bill (H. R. 11258) which would prevent public libraries and other institutions of learning, as well as the general public, from importing the authorized foreign reprint of an American authors' work whenever an agreement authorizing such reprint shall stipulate that copies shall not be brought into the United States, etc. Theoretically, this restriction would affect libraries but little, since in the vast majority of cases they buy the American edition of an American author's work. Actually, however, the restriction would be seriously detrimental because of the necessity of ascertaining in each instance before importing a book whether the author is an American or not. In the Springfield City Library, for example, we check the current English book reviews, circulars, and advertisements. The great majority of the books so selected are by foreign authors, and are ordered from abroad. In very many cases, however, the librarian can not be sure that the books are by foreign authors. To ascertain this fact in each instance would involve great labor, expense, and delay. The case of a public library is very different from that of a dealer, who perhaps would order 500 or 1,000 copies of the same book, where the library orders one copy of 500 or 1,000 different books. For the library to attempt to discover in each instance the nationality of the author would involve such labor and expense as to be almost prohibitive. I feel certain that under existing conditions libraries almost universally buy the American editions of works by American authors. Certainly the importation of such works by libraries is practically negligible, yet in order to prevent it, the Solberg restriction causes for libraries a wholly unnecessary and very grievous burden on all their importing. Not only would great expense be caused, but there would be resulting delay in procuring English books for American readers. The substitute importation restrictions proposed by the publishers are likewise unsatisfactory. The public welfare requires that libraries and other institutions of learning should continue to enjoy their present privilege of importing, for use but not for sale, one copy of a book (except piratical editions). Very truly yours, HILLER C. WELLMAN, Librarian. A further argument adduced in this connection is the desirability of holding this privilege as a guarantee against grossly discriminating domestic prices as compared with those for the foreign reprints. It would not be right for Englishmen to get American books habitually cheaper than we. England forbids the importation of infringing works for sale or hire, but does not define infringement. No matter what the law says, however, it is not the English habit, any more than it is ours, to bring in foreign reprints. The only difference is that the English publisher does not deem a specific prohibition worth enacting while the American publisher demands it. Canada copies the British statute but adds: "Notwithstanding anything in this act it shall be lawful for any person "(a) To import for his own use not more than two copies of any work published in any country adhering to the convention." In the new Swiss law of 1922 there is free movement of all authorized editions. This was a very brave act on the part of Switzerland, considering her trilingual population and the depreciated currency of her neighbors. The register on the other hand considers the provision "reasonable and necessary to meet conditions arising under and due to the act of 1909" (whatever that means), and he cites as a parallel case the prohibition of importation into England of the Tauchnitz reprints. The committee will have to adjudge this difference of opinion, though in case of doubt the public should have the benefit of it. In time, it ought to prove an academic question, for, in the union, reprinting, as needless for copyright, should come to be a rarity. But no matter what your opinion as to importing authorized foreign reprints of American works, there can hardly be two ways of thinking about the pub lishers' proposed interference in the process of our acquiring foreign originals. That is an old offender which Congress has already expelled four times in the last third of a century. Its enactment was attempted twice during the war, but frustrated by the vigilance of the American Bar Association. In the present instance, as always before, a little group of international publishers wish to be given the power of excluding foreign originals which they reissue here. So ran their resolution adopted October 4, 1921, at the outset of this campaign to enter the International Copyright Union: "That during the existence of the American copyright in any book, work of art, or musical composition the importation into the United States shall be prohibited unless such importation is made with the consent of the proprietor of the American copyright.' This American reissue they would like to have in the form of sheets, imported at the nominal duty thereon assessed, and bound here, with substitution of their own title page for that of the original, but the printers insist on remanufacture here if the publisher is to have such monopoly, for they charge these houses with the operation of presses abroad. So blunt a demand always awakens revulsion and abatement soon sets in. To-day, three years later, the demand is confined to books; i. e., works of art and musical compositions have been withdrawn. Again, while the trade is not allowed to stock the original, a person or institution may get one copy for use, if it be ordered through the reprinter, who now, for the first time, agrees to supply at the foreign price plus transportation. Then, the Government and the blind are let off, though why none explains. Finally, secondhand copies (though how you would prove them so is hard to say), collections purchased en bloc for institutions, and books of travelers thither can come straight to the buyer. The proposal is seen not to concern American authors in the least. The bill as drawn gives them, if anything awry, excessive protection. Nor is it presented to fend off one who would despoil the foreign writer, though that is the sole and full duty of the United States Congress to him. It affects to ask the law's help in increasing the foreigner's emoluments, which is hardly the business of our legislature. What they really seek, however, is to force the libraries' foreign patronage to themselves, under the guise of copyright requirement. That is to say, when the corner grocery changes hands the new owner in buying stock and goodwill would force the neighbors by law to patronize him. But there are some things which can not be bought, and one of them is American liberty. It is a significant fact that they never cite a supporting sentence from any foreign code. There is none. I gave the British, Canadian, and Swiss provision above, to the contrary. And they have never quoted but one case in practice, the Tauchnitz reprints, which was certainly exploded for good and all in the hearing of January 22 (pp. 89 and 90). At that time were produced two signed statements from Tauchnitz that the British and American originals which he reprints can be freely imported by anybody in Germany, without any reference to him. To similar purport writes the long-time secretary of the Incorporated Society of Authors, Playwrights, and Composers [English]:" * "In answer to your questions, there is nothing whatever so far as I can see to prevent the importation into England of copies of the [original] American edition, whatever price the American edition may have been published at * The remedy would be, of course, a remedy under the contract in the courts, and not under any statute.' The following exchange of correspondence with the Director of the British Museum, the foremost librarian of the British Empire, clinches the matter: Sir FREDERICK G. KENYON, THE JOHNS HOPKINS UNIVERSITY LIBRARY, Director British Museum, London, England. DEAR SIR: A movement is now under way in the United States for clearing the path to our entrance into the Berne International Copyright Union. It becomes of some interest to know what is the actual practice of British libraries in the matter of importations under the existing British copyright act of 1911. I refer to section 2, (2), (d). Here it is stated that "copyright * * * shall * * * be deemed to be infringed by any person who * * * imports for sale or hire * * * any work which infringes copyright. ** Do you in practice esteem yourself in possession of the right to import for use, as against sale or hire, the original American edition of an American work of which an authorized edition may also have been published in England? Such * * * privilege would seem to be inferred from the text of the law. The American law, as you may know, is very specific on this point. In case you exercise such privilege, are you at liberty to order such original American work through other than the English copyright owner? Is such right recognized by the customs officials or merely connived at? * * * Yours very truly, M. L. RANEY, Librarian. BRITISH MUSEUM, London, April 19, 1922. DEAR SIR: The answers to the questions asked in your letter of April 3 are as follows: 1. When an authorized edition of an American work has been published in England we should not normally order a copy of the American edition. We are content with the English edition, which we receive gratis under the copyright act. If, however, there were reason to suppose that the American edition would have a separate value of its own, we should feel at liberty to order a copy for the British Museum. 2. We should feel at liberty to order a copy of the American edition through other channels than the English copyright owner. In the case supposed, it is the American book that we want, and a copy of the English edition would not answer our purpose. We are therefore not buying what the English owner has to sell, and there is no reason why we should order through him. 3. The purchases in question must be so rare that it is very unlikely that the customs officials would know anything about them. Unless some special notification were attached to each volume (similar to the notice printed on the cover of all volumes in the Tauchnitz series) the officials would have no means of knowing whether an English authorized edition existed or not. I trust that these answers to your inquiries are clear and satisfactory. M. L. RANEY, Esq. F. G. KENYON. B Think of the amazing situation that would face the American users of foreign publications if such a proposal became a law. No contemporary or prospective book could be safely ordered from Europe by anybody in the United States without first writing to the copyright office to ascertain whether some American publisher had reissued or would reissue it here, and what the publisher's address is. Thus harass the whole educational world just to gratify a little group of New York publishers who could be named on the fingers of a mutilated hand, and might better be employed in sending the works of American authors to the ends of the earth, while letting American librarians and British authors take care of themselves? They believe in the "edition partage," they say; i. e., in their spokesman's phrase, the author's full control in "assigning the publishing rights in the several markets in which his book can be sold." So do we all. Let's start dividing the field and see where we diverge. There could be an edition for each of several countries. The American owner could then sublet by States. Next, each municipality could have its own issue, and, finally, there might be one for Manhattan, and another for Brooklyn, etc. All these city and borough editions may, of course, be manufactured at one place, the difference being only in the title pages. Now you are required by your theory to maintain that it is the duty of the Government to prevent anyone from crossing the bridge to get a Brooklyn copy unless he can show a pass from the Manhattan owner, while I say that the Government's sole duty is to prevent a third unauthorized edition. Which is right, gentlemen? A modern democracy will not allow such airs. to an author or anybody else, and the Authors' League is too smart to try. These gentlemen should see that the jig is up. As the register has clearly shown, the limitation on importation was an incident of the manufacturing clause, and when that clause is abrogated the limitation also logically disappears. Till 1891, everybody could import at pleasure the books of foreign authors. When in that year we gave the foreign author copyright on condition of having his book made here, the dealer, to give effect to that clause, was cut off from his foreign supply, but education, in harmony with her exemption from tariff, was allowed to continue importing, though reduced to two copies at a time (one in the act of 1909). With the manufacturing clause against foreigners repealed, we should automatically revert to the freedom of the century from 1790. That is all there is to it. Finally, the whole scheme of artificially stimulating republication runs counter to the modern striving to reduce the number of middle men, so that producer and consumer may get closer together, to the advantage of both. When that comes about my box of apples will not cost me $5, and the raiser will get more than the present $1.18 to the retailer's $1.87. One more clearance and I am done. The publisher's representative says he thinks section 41 "may be held by the authorities in Berne to be a contravention of the regulations of the Berne convention." If so, Switzerland, the seat of the convention, went through the ice with its new law of 1922, for that allows general importation not only of foreign originals reprinted in Switzerland, as our bill does, but also of foreign reprints of Swiss works, as our bill forbids where the American publisher so decrees, and that despite the exchange situation. That is answer enough, but the last element of doubt is removed by the following extract, literally translated, from a letter sent me by Doctor Rothlisberger, the director of the union's central office and the editor of its official organ: "The question of the regulation of the law of divided edition does not touch the revised convention of Berne directly, provided the right of disposing of his work as he pleases be left to the author. If he has fully arranged with an American publisher to get out a purely American edition for the United States the publisher of this, being invested with the right of reproduction of the work for the territory of the United States and thus become the owner of the American copyright in this work, will have to meet certain conditions in his country and submit to certain restrictions if he wishes to exercise this right territorially transferred. The domestic law of the contracting countries can not only fix these rights by sanctions but also establish conditions and restrictions." Thus Berne not only countenances section 41 but goes it one better. The word or conception of importation does not occur in the Berne convention, nor in the similar Pan-American one which we ratified in 1911 and proclaimed in 1914, with twelve other republics joining us to date. We then come back to the central object of all true copyright legislation, and that is protection of the author and composer against thievery. As matters now stand, an American writer can be robbed all over Europe unless he goes to the expensive trouble of double publication. Here, the case is the same with the foreigners. His writings can be stolen with impunity unless manufactured here. We protect all else, including his invention, for to our tremendous profit as a nation, we have been as enlightened in our patent enactments as purblind in copyright. There is no manner of doubt that our century of piracy put a terrible drag on our own literary development, for if a publisher could steal Europe's best, why should he buy an American manuscript? And while the era of wholesale appropriation is past and publishing ethics are in advance of the law, yet petty pilfering continues. For example, Prof. John D. Fitz-Gerald, writing in Hispania for March, 1924, says that many publishers have for years been taking for annotated textbook use the works of nineteenth century Spanish authors not yet in the public domain and in some instances even during their lifetime. With a moral issue of this sort presented, it is amazing to hear the representative of a great industry, which lives on composers, say that his company has too much money invested to allow of this country's leaving Russia, Turkey, and China to join the great number of enlightened States that agree not to steal the precious wares of thinkers and artists. Pray sign this expanded eighth commandment for authorship, and then shut the door to any amendment which would filch from the public a like protection. Hon. FLORIAN LAMPERT, THE WISCONSIN CHAIR Co., House of Representatives, Washington, D. C. DEAR MR. LAMPERT: We understand that the so-called Perkins bill has been introduced which eliminates the compulsory mechanical license principle on musical selections. We are manufacturers of phonograph records in a small way as compared with large companies like Victor, Columbia, Brunswick, and others. Under the law as constituted at the present time, we have available all of the copyrighted selections on the same basis as any other record manufacturer, large or small. Under the proposed bill, we understand that the copyright owner would be authorized to make individual contracts with such manufacturer and user of copyrighted musical selections enabling the owner to charge one, and presumably a low price, to large users and discriminate against the small user by charging a higher price or refusing to make any agreement at all, giving a few special manufacturers exclusive rights. This would be decidedly detrimental to our business and to the interests of all small manufacturers. We hope that you can see your way clear to use your influence in opposing this bill. As a matter of personal comment, I might say that I am a Winnebago County farmer boy, grew up in the town of Winchester, and was drafted into the special police service at the time of the strike in Oshkosh, somewhere around 1897 or 1898, at which time you were sheriff of Winnebago County, and I remember you very well. With kind personal regards, I remain O. E. MOESER The HON. FLORIAN LAMPERT, THE CITY LIBRARY ASSOCIATION, Chairman House Committee on Patents, House of Representatives, Washington, D. C. DEAR SIR: I want to call your attention to a practical difficulty that would result from the provision in the so-called Solberg copyright bill (H. R. 11258), which would prevent public libraries and other institutions of learning, as well as the general public, from importing the authorized foreign reprint of an American author's work whenever an agreement authorizing such reprint shall stipulate that copies shall not be brought into the United States, etc. Theoretically, this restriction would affect libraries but little, since in the vast majority of cases they buy the American edition of an American author's work. Actually, however, the restriction would be seriously detrimental because of the necessity of ascertaining in each instance before importing a book whether the author is an American or not. In the Springfield City Library, for example, we check the current English book reviews, circulars, and advertisements. The great majority of the books so selected are by foreign authors, and are ordered from abroad. In very many cases, however, the librarian can not be sure that the books are by foreign authors. To ascertain this fact in each instance would involve great labor, expense, and delay. The case of a public library is very different from that of a dealer, who perhaps would order 500 or 1,000 copies of the same book, where the library orders one copy of 500 or 1,000 different books. For the library to attempt to discover in each instance the nationality of the author would involve such labor and expense as to be almost prohibitive. I feel certain that under existing conditions libraries almost universally buy the American editions of works by American authors. Certainly the importation of such works by libraries is practically negligible, yet in order to prevent it, the Solberg restriction causes for libraries a wholly unnecessary and very grievous burden on all their importing. Not only would great expense be cause, but there would be resulting delay in procuring English books for American readers. The substitute importation restrictions proposed by the publishers are likewise unsatisfactory. The public welfare requires that libraries and other institutions of learning should continue to enjoy their present privilege of importing for use but not for sale one copy of a book (except piratical editions). Very truly yours, HILLER C. WELLMAN, Librarian. (Thereupon, the committee adjourned to meet again at 10 o'clock a. m., Tuesday, February 24, 1925.) |