Mr. LADAS. Yes. Mr. GILBERT. Well, is not the patent convention merely a reservation to a citizen of the United States, for example, who has complied with the law of the United States, of a right to go to a country of the convention and make application there for the grant of a patent under the laws of that country? So, under the copyright convention, there is that substantial difference. Under the copyright convention, as you stated, they passed over legislation as to the fundamental creation of the right, whereas in the patent convention that power is reserved to each country, isn't that so? Mr. LADAS. Well, in a certain way, but I would say when you speak of the patent convention you must not only consider patents but also trade-marks. Mr. GILBERT. Let us talk about one thing at a time, so we do not get into confusion. Under the copyright convention, this Bern Convention, the convention itself creates the property in every country that adheres to the convention, according to the formula prescribed by that convention; is that correct? Mr. LADAS. It is a little bit too broad. Mr. GILBERT. Well, you stated it before, that there were three separate divisions. Mr. LADAS. Yes. If you will permit me to say why it is too broad Mr. GILBERT. I would rather, in order to simplify the matter, present it in my way. Under the copyright convention it states that copyright shall exist in every country of the convention by the mere act of its creation, and that that is a fundamental principle, which the Congress of the United States could not change if it wanted As to that, I am correct, am I not? to. Mr. LADAS. Not quite. Mr. GILBERT. Well, the convention is there. You have read it, and we can all read it. I maintain that is what it says. Now, we. go to the patent convention. Under the patent convention there is no analogous provision, is there? Mr. LADAS. With regard to patents? Mr. GILBERT. With regard to patents. Did you say, "yes?" Mr. GILBERT. Now, you said that there was no analogous provision. Mr. LADAS. "Analogous"-again, what do you mean by "analogous"? I did not accept your first statement. Mr. GILBERT. We will try to make it specific. In the United States, the Congress of the United States has power to say today that you cannot have copyright protection, or the Congress will not recognize published literary property, unless that property when published has attached to it a notice of copyright, and unless copies are deposited in the office of the register. Now, the convention is designed to eliminate those two conditions, is it not? Mr. LADAS. Correct. Mr. GILBERT. So that after the United States becomes a party to the convention, the Congress of the United States could no longer provide that the creator or the publisher must attach that notice? Mr. LADAS. The Congress of the United States can always provide so, and the United States can denounce the convention if it suits it. Mr. GILBERT. I say, if the United States adheres to the convention, then under the terms of that convention the Congress of the United States would be barred, would be prohibited, if it wanted to live up to the convention, from providing that literary property when published must have that notice attached? Mr. LADAS. It would seem so. Mr. GILBERT. All right. But under the patent convention each country reserves the right to provide by its domestic law for any conditions that might attach to the granting of a patent, and for any conditions that might attach to what we might call the publication of the invention, the distribution of the invention; am I not right? Mr. LADAS. Yes, sir-yes and no. Mr. GILBERT. Some of the countries, parties to this industrial convention, do provide, as a matter of fact, that patent notice should be attached to the article, do they not? Mr. LADAS. Some; yes, sir. Mr. GILBERT. And some of them provide the form of the notice, some provide that a notice containing the year and date and name be attached, and others provide for a different notice, do they not? But under our copyright convention, such things could no longer be done by the Congress of the United States, could they, if they adhered to this convention? Mr. LADAS. I do not understand the whole analogy, because it is not the same thing. There is a world of difference between a patent and a copyright, to begin with. Mr. GILBERT. They both are monopolies granted by the Government, are they not? Mr. LADAS. I dispute very much that copyright is a monopoly. Mr. GILBERT. I think we will get into a philosophical discussion. Senator THOMAS of Utah. I think you have already arrived at your "philosophical discussion," gentlemen. Mr. KILROE. I would like to ask one more question about Holland. Now, Holland does not regard the copyright law very highly, does it? Mr. LADAS. You mean foreign copyrights? Mr. KILROE. Or domestic. Mr. LADAS. Or domestic? Mr. KILROE. Well, she did not have a copyright law until about 10 years ago? Mr. LADAS. They were quite late. Mr. KILROE. She still regards copyright in the same way that the United States regards prohibition? Mr. LADAS. Do not forget that the United States did not have much of a copyright law for a long time—that is, foreign copyright. Mr. KILROE. Well, they did not have much of prohibition, either. Now, I would like to read you a statement, to see if this jibes in with your research on it. Our legation from The Hague wrote to Mr. Secretary of State Gresham on February 23, 1895, only four lines, and I think it sums up the attitude of Holland: In my last interview on the subject with the Minister of Foreign Affairs, His Excellency stated that there existed no copyright whatever in this countrymeaning Holland-public opinion being adverse thereto, and hence the prospects of international copyright law were very slight indeed. That is only a generation ago. That is still the thought in Holland, isn't it? Mr. LADAS. No, I would say that it was a generation ago, yes; but not today. It makes a lot of difference. Mr. KILROE. Since Holland passed this copyright act, how many cases have there been in Holland? There have not been four cases in there by Americans. Mr. LADAS. Simply because they do not recognize this trick, I call it, of simultaneous publication. Mr. KILROE. No, it is like prohibition. They do not recognize copyright. Mr. LADAS. And I do not blame them for not doing it. We would not do it here, ourselves. Mr. KILROE. What makes you think that if we join the Bern Convention they will give us better protection? Mr. LADAS. By publication in the United States. Mr. KILROE. I understand that is the law, but they will not have the law when the Holland courts get through with it. Mr. LADAS. That is only a guess on your part. Mr. KILROE. Well, it is backed up by tradition. Senator THOMAS of Utah. Thank you, Mr. Ladas. (Mr. Ladas presented to the committee a formal statement, as follows:) STATEMENT BY DR. STEPHEN P. LADAS BEFORE THE SENATE COMMITTEE ON FOREIGN RELATIONS AT THE HEARING The movement for accession of the United States to the International Copyright Union covers a period of more than 50 years. Before the World War, the main argument for accession was one of abstract justice or of cultural interests. Thoughtful people insisted that the United States should follow the example of all important countries of the world and secure to authors and creators of literary and artistic works, through accession to the union, its broad protection, free of formalities and conditions. Today in addition to the old argument we have important economic interests that seek protection through accession to the convention. I can do no better than quote the report of the Senate Committee on Foreign Relations, recommending consent to the accession in 1935 (74th Cong., 1st sess., S. Ex. Rept. No. 4): "The present century has witnessed an enormous expansion of the economic and cultural value of literary and artistic works. Great new industries, such as those of radio broadcasting and the production of motion pictures, are based upon the use of copyrightable materials. American motion pictures are exhibited everywhere. The musical composers of the United States have acquired great popularity throughout the world; they find their songs and their melodies in universal demand. American literary authors have an increasing appeal for the reading public and their works circulate, either in the original or in translation, in all countries. It is desirable from the point of view of the United States that these expressions of its culture should contribute to the culture of other countries and that the economic benefit of distribution through the widest possible area should be enjoyed by its authors and musicians, its playwrights, and motion-picture producers, under the assurance of copyright which the convention affords. It is likewise desirable that opportunities to circulate their works here under reciprocally protective treatment should be accorded by the United States to the people of other countries." Persons who have voiced objections to the accession by the United States to the International Copyright Union in the past have allowed certain confusions and misunderstandings to arise concerning the convention and I have no doubt that this was due to inadequate understanding of the stipulations of this convention. I can say this with some humility because I have devoted nearly 5 years to the study of this convention, its stipulations, its effects and application in the various countries, the legislation passed in such countries in pursuance thereof and the court decisions in all countries. The results of this study were published under my name by the bureau of international research of Harvard University and Radcliffe College in a two-volume work published in 1938 under the title "The International Protection of Literary and Artistic Property." In order to clearly understand the scope of the stipulations of the convention, I must point out that this contains three categories of provisions: (A) Those that refer to the domestic law of each country and do not purport to affect its autonomy; such are: Article 2, paragraph 4, which provides that works of art applied to industry "shall be protected so far as the domestic legislation of each country allows. It has been carelessly claimed at times that this provision protects designs. This is not true. What this provision means is that some countries have proposed that designs shall be protected, but no agreement was reached on that and the convention accordingly left the matter to the province of the legislation of each country. It leaves each country free to decide whether or not it will protect designs by the copyright law. Accordingly, should we accede to the copyright convention we are not required by any means or manner to protect designs. Similar are the provisions of article 4, which leaves the nature and extent of copyright protection to be determined by the law of each country, and many other provisions. (B) Those that state a principle or a wish and leave further regulation to the law of each country. I will cite two examples. Article 6bis provides for the principle of the protection of moral rights of authors. The first paragraph announces the principle and then the second paragraph leaves it to the legislation of each country to establish the conditions for the protection of these rights. Accordingly, a wide latitude is given to the legislation of each country to determine when and how and under what conditions and limitations moral rights will be protected. The other example is article 7 of the convention concerning the duration of copyright. The first paragraph of this article states that the duration shall be the life of the author and 50 years after his death. However, the second paragraph indicates that the first is only a wish, because it provides that the contracting countries are not bound to grant this term of protection except insofar as this agrees with their domestic law. It follows that we must be careful not to be deceived by some of these general stipulations and must analyze carefully the whole stipulation in order to ascertain how far it is applicable or enforceable under domestic legislation. (C) Lastly, there are provisions in the convention that must be deemed international legislation in the sense that the convention announces a rule of law that must be enforced and applied in each country. Examples of such provisions are: Article 4 which likens foreign authors to nationals; abolishes all formalities for the enjoyment of copyright protection and defines publication; article 8 which protects translation rights; article 9 which protects articles of newspapers and periodicals; article 11 which protects performance rights, etc. It is clear that when comparing the convention with our copyright law in order to ascertain how far there is conflict between the two and what engagements we will be undertaking under the convention necessitating a change of our law, we must take account only of the third category of provisions. I am aware that a bill for the amendment of our copyright law has been prepared after conferences with all interests concerned and introduced in Congress last year. This purports to bring our law into conformity with the international convention. Doubtless this would be a good thing to do. But leaving aside for present purposes the amendment of our law and comparing the convention with our Copyright Act in force, I find that the points of conflict or apparent conflict are the following: (1) The convention purports to protect so-called oral works, such as lectures, addresses, sermons, etc., except that protection may be excluded, partially or wholly under the law for political discourses or discourses pronounced in judicial debates, and also that the law may provide that such oral works may be reproduced by the press. Much has been said about this provision of the convention requiring a change in our law. In fact, our Copyright Act, section 5, protects: "Lectures, sermons, and addresses (prepared for oral delivery)" and while this is deemed to apply when the works in question are reduced to writing, it will be easily appreciated that when it comes to international protection of these works, the existence of a writing is always to be presumed. Accordingly, I do not see any real conflict with our law. (2) The convention protects explicitly works of architecture and choreographic works and pantomimes, the stage directions of which are fixed in writing or otherwise. Our law does not mention explicitly works of architecture but these are deemed included in the broad terms of "works of art" in section 5. On the other hand, choreographic works, and pantomimes, the stage directions of which are reduced to writing, are covered by the terms "dramatic or dramatico-musical compositions" in section 5, so that again I see no conflict here between the convention and our law. (3) The convention protects unpublished works in the same way as published works. Under our law unpublished works are protected by the common law but we do provide for registration of certain classes of unpublished works under section 11 in which case the copyright statute applies. Here there is a conflict with the convention and we would have to extend the protection of the act to all unpublished works. I shall again, however, remark that when it comes to international protection, the kinds of unpublished works involved are mostly those that we already protect under section 11 of our act. (4) The convention protects moral rights of authors, in section 6bis. I have already pointed out that the convention only establishes a principle and that the application is left to the law of each country. The whole theory of moral rights is still to be worked out in our country and we can accept the engagement of the convention. (5) The real and probably single conflict of our present law with the convention is in the stipulation of the latter that copyright is obtained upon creation of the work and is not dependent upon compliances with any formalities and conditions. This means that on acceding to the convention we will be required to protect foreign works without requiring that there should be a copyright notice on such works or that the copyright be registered following a deposit of copies or that they be manufactured in the United States. I trust that our law will be amended shortly so that we will extend protection to foreign authors on the basis provided by the convention. I could explain fully the lack of substance of these requirements and how we can get along perfectly well without them but there may not be time to do that. Suffice it to say that under the decision of the Supreme Court of 1939 in the Washingtonian case the only real requirement for the acquisition of copyright under our present law is the notice of copyright and that we have large classes of works under this law which are protected without any condition whatsoever. I refer particularly to dramatic works and musical compositions which so long as they are not issued in copies to the public are protected by the common law. The next question is: Do we need a previous amendment of our copyright law in order to give effect to the stipulation of the convention for copyright protection of foreign works without compliance with any formalities and conditions? If we need such previous amendment, it would follow that our accession to the convention would be ineffectual and we should not undertake the engagement. My submission is that we do not need to wait for the amendment of the law. The courts will apply the convention and will protect foreign works entitled to the benefit of the convention, regardless of the requirements of our law. This is now certain under the decision rendered on December 9, 1940, by the unanimous Supreme Court in the case Bacardi Corporation of America v. Domenech, treasurer, which held that an international convention supersedes the domestic law to the contrary. The convention provides that on acceding to it, a country may fix the date from which it desires such accession to become effective. I would submit that the President on acceding to the convention may notify that the accession shall become effective after a certain period, say, of 6 months, thus providing for a period within which Congress may adopt the new bill which will amend our present law. This In 1935 when accession to the convention was voted on unanimously by the Senate, the argument was made that in Germany and Italy certain discriminatory measures were taken against works of certain authors, particularly Jewish authors, and that in view of this we should not accede to the convention since under this we would protect the works of German and Italian authors. argument does not stand analysis. To begin with, German and Italian authors are now protected in the United States under the regime of Presidential proclamations and we cannot discriminate against them under our law. Secondly, by acceding to the convention we would strengthen our position in the two countries in question against the discriminatory measures in question since we would 311545-41- -5 |