under consideration provides, without affecting authors' rights in their own country, that in other countries parties to it they shall have copyright regardless of the fulfillment of any formality.

The result is that this long-pending convention precisely fulfills the needs of authors arising out of the present emergency.

When the United States becomes a party its authors will have copyright, on the creation of their works, in all of the other countries parties. Most other countries have already long been parties and have demonstrated the practicability of the method of protection which the convention provides.

The United States does not wish to deny copyright to the authors of any country. It does wish to facilitate protection under its laws to authors of all nationalities wherever making their abode. Accordingly, it will assume no unwelcome responsibility in becoming a party to the convention. While in recent years exchange restrictions imposed by certain countries have prevented authors, like all other people, from withdrawing funds accumulating to their credit, no complaint has been received indicating that protection against infringement of copyright has been impaired wherever the treaty is in force. While such exchange restrictions are regrettable, their presence does not diminish the need of American authors for protection against unauthorized use of their works in the countries in question. Rather is such protection rendered more necessary.

The United States very positively desires that its authors shall receive maximum protection in other countries. By becoming a party to the convention this Government will automatically acquire such protection for its nationals and so will be doing its part to meet the present emergency. It will, in addition, take a step which will strengthen and confirm international conventional law and so make a contribution to law and orderly procedure at a time when such a contribution is of unusual pertinency.

At the time of the first World War, emergency legislation was passed, particularly to prevent authors in Great Britain and Canada from losing copyright because of formality requirements in the law of this country. The Government of Great Britain is understood to be requesting consideration of similar legislation to take care of the present emergency. The pending convention will, when put into operation, accomplish all of the purposes of such legislation and accomplish them better.

The committee has not failed to note that recent conflicts of interest between certain users of copyrighted works and assignees of authors' copyrights have so jeopardized the rights of authors and of the public in this country as to call for special action by the Department of Justice. In this situation a step by the Senate calculated to safeguard authors' rights in general would seem to be unusually appropriate. Approval of the copyright convention would certainly constitute such a step.

In support of this convention, and urging early ratification, the following letter was received by Senator Elbert D. Thomas from the Secretary of State, Hon. Cordell Hull:

The Honorable ELBERT D. THOMAS,

United States Senate.

JANUARY 15, 1941.

MY DEAR SENATOR THOMAS: I am very much pleased to learn that the Committee on Foreign Relations has again taken favorable action upon the convention

for the protection of literary and artistic works (Executive E, 73d Cong., 2d sess.) and I hope that the Senate will give its final approval to this treaty at the earliest practicable date.

All of the previously existing reasons for such action remain valid. There are in addition, growing out of the present emergency, certain reasons why it is particularly important now that the United States give its adherence to the convention. The purpose of the convention is more effectually to protect authors' rights in their creations. Its method is to exempt authors from formalities that have made such protection unduly burdensome in the past. The emergency has emphasized the burden of these unnecessary requirements. For instance, the requirement of deposit of copies of the work upon which copyright is sought may become impossible when communications are interrupted by blockades or other types of armed hostilities. I am particularly concerned about the rights of our own authors in other English-speaking countries and about the rights of their authors here. The Government of Great Britain has officially requested that a reciprocal arrangement be entered into. As Great Britain is already a party to the convention for the protection of literary and artistic works, adherence to it on the part of the United States would complete such an arrangement. I believe this would be the best available form for the arrangement to take. Moreover, the benefits would extend beyond the present and be of great value after the emergency has terminated.

With cordial appreciation for your continuing efforts to obtain approval of this long-pending treaty, I remain

Sincerely yours,

CORDELL HULL.

This convention, best referred to as the convention for the protection of literary and artistic works, was at the last session of Congress referred to a subcommittee for particular study and recommendation. The report of the subcommittee, with its annexes, is appended hereto, concurred in, and made a part of this report as follows:

Hon. KEY PITTMAN,

Chairman, Committee on Foreign Relations,

United States Senate.

MARCH 29, 1939.

MY DEAR SENATOR PITTMAN: The Committee on Foreign Relations having referred to me, as a subcommittee of one, the question of the disposition of the pending general Copyright Convention (Executive E, 73d Cong., 2d sess.), I recommend that the committee make a favorable report to the Senate. In doing so, I wish to remind the committee that it has three times previously voted favorably upon this treaty, in 1931, 1935, and, most recently, in November 1937. The report of the committee on that occasion, which was printed as Senate Executive Report No. 1, Seventy-fifth Congress, second session, is attached to this report and, with its accompanying exhibits, is to be considered an integral portion of it. I attach also a copy of a letter of April 4, 1939, from the Secretary of State, together with copies of the messages of Presidents Hoover and Roosevelt and Secretaries Stimson and Hull transmitting to the Senate first an earlier revision of the treaty and later the present revision with a view to receiving advice and consent to adherence on the part of the United States.

Should the recommendations of this letter be acceptable to the Committee on Foreign Relations, I suggest that, with the attached documents, it be incorporated into the report of the committee to the Senate.

I desire particularly to call attention to exhibit 1 of the committee's 1937 report, namely, the report of the subcommittee which was appointed in 1937, consisting of Senators F. Ryan Duffy, Wallace H. White, Jr., and Frederick Van Nuys, to consider this convention. I emphasize its plea for immediate action and, in the paragraphs which follow, particularly reaffirm and discuss certain of its points.

(1) Constantly increasing need for the treaty in order to protect American authors. I learn from the Department of State that evidence is piling up of increased piracy in several parts of the world. For instance, the American Ambassador in one country, already party to the pending treaty and consequently bound to protect American interests as soon as the United States becomes a party, has just sent in a list, which he describes as "partial" only, of more than 40 books by American writers, translations of which have recently been published there, almost certainly without consent of the authors and, of course, without the payment of

royalties to them. It is interesting to note that, while exports of American books are definitely on the increase to other countries as a whole, the 1938 figures for the country in question showed a 45-percent decrease as compared with 1937. While there is no proof of causal connection, it is obvious that, if publishers there have the legal right to help themselves, they are following not unnatural instincts when they take advantage of increasing popular demand for American books by bringing out their own editions. This, of course, deprives American labor of the opportunity to manufacture the books that would be sold there if the United States possessed the right of protection against piratical translations. The United States, without having to negotiate, can put an end to this piracy by its own act of adhering to the pending treaty.

There are other examples of piracy involving certain other countries now parties which will be obliged to put a stop to such practices, once the United States adheres to the treaty. The facts that American copyrightable works are increasingly demanded in other countries and that exports are increasing show emphatically the need of better copyright protection everywhere. Exchange regulations in various countries, which so greatly hamper trade and which are so irritating to authors and publishers, also increase the need for copyright protection, for it is behind these barriers to trade that some of the most persistent piracies occur.

(2) No need for accompanying legislation.—I am thoroughly convinced that the treaty should stand on its own feet and be adopted entirely independently of the amendment by statute of the present copyright law. I feel that the statements made in the report of 1937 should be reiterated and particularly agree with the members of the subcommittee in their belief that continued inaction by the Senate on the treaty "simply plays into the hands of those who wish to defeat legislation under cover of opposition to the treaty.' I am strongly of the opinion that the Senate should exercise its constitutional prerogative in respect of the treaty. When the House of Representatives is ready, the Senate will join in the making of whatever reforms are needed in respect of domestic legislation.

Entirely apart from this aspect of the case, moreover, I think the treaty should be ratified in advance of the enactment of legislation as a matter of sound policy and correct procedure. As between treaty and statute law the later in date prevails. It is appropriate that the final word in this matter should be said by the Congress as a whole. Prior action on the treaty will thus not only prepare the way for appropriate legislation but assure the prevalence of the interpretive and supplementary legislative enactment called for by the treaty, which enactment is, so far as the treaty is concerned, the chief objective of amendments to the statute.

In this connection it may be worthy of note that Mr. Stephen P. Ladas, of the New York bar, remarks in his recent and very able book entitled "The International Protection of Literary and Artistic Property" (vol. 2, p. 876):

"It is believed that experience must now indicate that the only practical manner of achieving accession to the Copyright Union is by the Senate's voting to advise and consent to the President's taking such action. When this is done several of the provisions of the convention, which are immediately applicable, will be deemed self-executing. For the rest, the effort at amending the Copyright Act may continue. It is believed that the latter may take considerable time, as the conflicts of interests in several matters appear to be difficult to reconcile."

I am informed that promising efforts to effect reconciliation are in progress under the leadership of the committee for the study of copyright, an organization which has brought together representatives of all or practically all the authors' and users' groups that have been active in promoting copyright legislation in the past. The early recommendation is contemplated of a bill designed to meet the needs of a situation which, since 1909, the date of the present statute, has been changed by the introduction of the radio and motion picture and which has developed unprecedented need for international protection.

(3) Answer to those who ask legislation before the treaty. The interests which have demanded that the treaty be held in abeyance pending the enactment of new legislation usually advance three principal lines of argument, namely, the alleged vagueness of the treaty in respect of (a) what is called "oral" copyright; (b) the author's "moral" right; and (c) retroactivity of application. These, with certain others, have been dealt with in the 1937 report. Some candid additional comment may not be out of place here. It should be remarked, however, that clarification by means of a statute has its own limitations: Certainly a statute cannot make the treaty mean something which its own language does not mean and what its own language already means will not be made more certain merely through statutory reiteration. The utility of amending this statute derives, as

already pointed out, from the fact that the treaty itself specifies certain items which it leaves to be regulated by the respective national laws of its parties. (a) "Oral" copyright: The latest revision of the Copyright Convention adds "lectures, addresses, sermons, and other works of like nature" to the stated list of works entitled to copyright. The proceedings of the conference which revised the convention show that an effort to include oral works as such was defeated and that the foregoing language was accepted instead. The United States statute, listing the classes of copyrightable works, includes, section 5 (c), “lectures, sermons, addresses (prepared for oral delivery)." Certainly the statute does not mean that a mere spoken utterance, not reduced to any sort of recordation, is susceptible of copyright. There appears to be no reason to believe, either from the language of the treaty, the official records of discussions regarding it, or any practice under the treaty, that the treaty language differs in meaning from that of the existing statute. Surely there is no need for changing either statute or treaty in order that those who oppose "oral" copyright may be wholly satisfied. The finding of the 1937 subcommittee appears wholly warranted.

(b) "Moral" right: Apart from the fear on this subject, which was emphasized and shown to be groundless by the 1937 report, the question has been raised whether the language of the Copyright Convention as most recently revised could affect the full freedom of contract in respect of the "moral" right which American authors now possess. On this point the official organ of the administrative bureau which functions under the Copyright Convention, issue of March 15, 1938 (p. 36), remarks:

66* * * If article 6 bis of the revised convention is maintained such as it is, it is feared that an adaptation at first authorized by the author in virtue of a contract, might later be contested as an attack on the moral right, especially if it is a question of the transformation of a novel or a play into a film. But, according to the convention, it is allowable that the author should be considered as bound if he has expressly or tacitly consented to a particular transformation. And if he has authorized in advance any changes whatever, he can no longer oppose the modifications rendered necessary by the new form of expression.'

Such a statement from so authoritative a source would seem to dispose of any idea that the convention makes the "moral" right inalienable. It is noteworthy, moreover, that in the two outstanding drafts of conventions that have recently been proposed by international committees at Montevideo and Paris, advocates of inalienability of the "moral" right have insisted on a specific provision that it shall be inalienable. Obviously they do not believe that the language of the present convention need cause any fear on the part of their opponents.

(c) Retroactivity: Certain American users of authors' works have expressed concern lest under the pending treaty, when it comes into force in the United States, literary and artistic productions from other countries, not now legally entitled to protection in this country, would be ipso facto copyrighted here. As a result, they fear, a work theretofore freely used by them would be protected by copyright, hence subject to the author's control for the future. Two provisions of the treaty are pertinent.

Article 13 relates to the adaptation of musical works to instruments for their mechanical reproduction and to the public performance of such works. This use of this variety of artistic works constitutes a very large part of the total use of copyrightable works by the motion-picture, phonograph, and radio interests. Article 13 provides specifically that, with respect to them, the treaty "shall have no retroactive effect." The protection to the authors provided for specifically shall not be applicable to works which shall have been lawfully adapted to mechanical instruments in a country before the date of its adherence to the treaty. Thus the treaty itself completely disposes of the fear referred to in respect of what would be the most potentially troublesome aspect of retroactivity.

The other provision is found in article 18, which provides that the protection of the treaty shall apply to works in general which have not fallen into the public domain of their country of origin because of the expiration of the term of protection there. If, however, such works have been protected by a shorter term of copyright in the United States, which term has expired when the United States adheres to the treaty, its adherence would not restore protection.

It goes without saying that no protection under the treaty becomes effective until the time when it enters into force in respect of the United States. As a practical matter, therefore, the "retroactivity" of the treaty is limited to the protection of works, other than music adapted to mechanical reproduction, which, though previously published, continue to enjoy copyright in the author's country and have not been copyrighted in the United States. In other words, in the United States, such works are to be treated, save as to term, as though they were

newly published works, in which case the treaty would protect them as a matter of course. Reciprocally, this "retroactive" protection will accrue, in other countries parties to the treaty, to the benefit of the works of American authors. In this connection it should be remembered that in Anglo-American law a strong presumption exists against any retroactive application. It is to be presumed that American courts, in applying the treaty, will not be disposed to expand such "retroactivity" as it seems to contemplate.

The fact, however, that some such works from other countries are doubtless in use by American motion-picture or other industries is the only genuine justification for the recommendation-in which I concur-that the treaty shall not come into force as an obligation of the United States until the expiration of a year following favorable action by the Senate.

During the year industrialists ought to be able to make appropriate adjustments so as to avoid infringement under the treaty. But it must be confessed that from the point of view of American authors, who need the protection of the treaty now, the proposed delay constitutes a considerable concession to the users of literary and artistic works-incidentally a somewhat costly concession, since it may enable the unscrupulous to continue to get free of cost from the foreign author what they would have to pay for if they used the creations of native talent. Such "competition" of the unprotected foreigner has at times been severe.

It must be recognized, however, that the number of works already in existence that would become copyrighted in the United States as a result of the treaty is probably small. Most such works likely to have any commercial value are already copyrighted here in accordance with existing statutory regulations. In all probability more American works that are likely to be profitable would thus become protected in other countries than would works of other countries' authors here.

Certainly no reason is made apparent why the treaty should be delayed until after the national law has been changed. The treaty would mean exactly the same after as before such amendment of the statute.

(4) The manufacturing clause. If evidence set forth at congressional hearings correctly sums up the attitude of authors in the United States, the greatest reform needed in copyright law is the legalization of copyright without formality. Internationally speaking, this is what the pending treaty gives them. And the Supreme Court, in the recent case of Washington Publishing Co. v. Pearson and Allen, et al. (decided January 30, 1939), has made clear the fact that under the act of 1909 they are entitled to copyright in this country on the observance of the one formality of publication with notice. "If all formalities were omitted," says a recent issue of the Publishers' Weekly, discussing this case, "our copyright law would be in general accord with the customs of other countries.'

The formalities of registration and of deposit of copies may affect the right of enforcement, but not the copyright itself. A fourth formality in the statute, which affects primarily authors in other English-speaking countries, is the requirement that works in English, to be copyrightable, must be manufactured in the United States. Such a provision, insofar as it affects authors domiciled in countries that are parties to the treaty, is contrary to the treaty.

Arguments have been put forward to the effect that, if English and Canadian authors are permitted to copyright their works here without the observance of this formality, there might be less typesetting, printing, binding, et cetera, to be done in American publishing houses. This objection to American adherence to the treaty has at times been put forward with considerable vehemence and ought to be answered with due care in connection with the recommendation that, nevertheless, the Senate accord its advice and consent.

The essential fallacy of those who put their faith in the manufacturing clause grows out of their failure to face realities. They see only one side of the question and that through a magnifying glass.

The

I have already pointed out the danger to American export interests of lack of adequate copyright protection in other countries. Such protection is likewise a safeguard against invasion of the home market with cheap pirated editions. treaty contemplates the seizure by the customs authorities of the countries parties to it of all infringing works. The actual fact, according to competent observers, is that any advantages to American industry, whether from the point of view of employers or labor, that may accrue from denying copyright to works in English manufactured outside the United States is wiped out by the accompanying loss of export trade. Correspondingly, the impetus to export trade which the treaty would furnish may be counted upon assuredly to compensate industry for such possible reduction of volume as may result from extending copyright to British and Canadian books and other publications. It is believed that approval of the