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then have the protection of the convention and not merely of the German law. Thirdly, the violation of the convention by a country should not lead us into abandoning the effort to uphold such convention. It is probably true that the Nazis have violated the Postal Union convention in more than one respect in the past but no one would maintain that we should drop out of the Postal Union for that reason. There is a creative element in every convention and we should not be deterred into seeking protection of private rights by international conventions regardless of temporary lawlessness and disregard of engagements.
I believe that accession to the International Copyright Convention should be consented to by the Senate at this time for several reasons:
(1) Because we would put an end to a situation that has not been flattering to the prestige and the dignity of the United States when more than 40 countries in the world, including the British Empire, Japan, France, Germany, Italy, have for many years given full protection to the works of authors and artists under the convention.
(2) Because the United States is now an exporting country for literary and artistic works and we must protect our interests which are interests of authors, producers, and labor, by taking advantage of the protection of the Convention and putting an end to the piracy of American works in foreign countries.
(3) Because by acceding to the convention we would be placed in a stronger position to establish more adequate inter-American copyright otection. Many of the Latin American countries have refused to protect adequately foreign works in view of the example which we have given. Already Brazil and Haiti are parties to the International Copyright Convention. Uruguay and Argentine are probably on the point of acceding since they have modernized their law in 1933 and 1937, respectively, by protecting foreign works without any condition or formality.
(4) Because accession particularly at this time would be an act of faith on our part in instrumentalities of law, order and cooperative action for the protection of private interests and this act would strengthen the moral force of the convention and prevent lawlessness in this field.
Senator THOMAS of Utah. The next witness is Dr. McClure, of the State Department.
STATEMENT OF DR. WALLACE MCCLURE, OF THE TREATY DIVISION
OF THE DEPARTMENT OF STATE
Senator Thomas of Utah. Dr. McClure, will you state your name and your position, please?
Mr. MCCLURE. My name is Wallace McClure. I am Assistant Chief of the Treaty Division of the Department of State.
Senator CAPPER. How long have you held that position?
Mr. McCLURE. I have been in the Department, sir, for about 20 years. I have been in the Treaty Division of the Department for about 12 years.
I should like, if I may, Mr. Chairman, in opening my remarks, to say for the benefit of my friends gathered around this table, particularly my friend Mr. Gilbert, here, that I am not a philosopher; and, for the benefit of all my friends, that I am in no realistic sense a lawyer; so I am simply going to approach this question as a member of the civil service of the United States, which I am. As such, I am of course not unaware of the fact that I have taken the oath of office to support the people of the United States and to try whenever I should be testifying on an occasion of this or any other sort, as I interpret my oath of office, to favor the public interests involved in this thing.
Senator CAPPER. Are you speaking for the State Department, now?
Mr. McCLURE. I am speaking for myself, sir, in regard to my own term and position in the State Department; but I am speaking for the Secretary of State, having been sent here for the purpose, insofar as the discussion of the copyright treaty which is before us is concerned; and desiring, if I may, to try to present it from the point
I of view of the public, I should like to stress, even at the risk perhaps of repeating some of the things that have already been said here this morning, the fact that there is a great public policy in this country, which has as its motive an effort to make the people of other countries understand the culture of the United States, if we can present it fairly to them, and equally an effort on the part of our own people to receive unprejudiced and undiluted, unperverted impressions of the culture and the thought of other countries.
Now, I maintain, gentlemen, that that is not going to be successfully done if we, in the one field of international law that definitely does have a bearing upon cultural relations, are going to permit perversions and distortions to take place, if there is any possible way to stop it. Of course, there is no way of getting 100 percent perfection in this matter. There is a way of getting a better instrument than we have had before to stop this thing, and it is that which the Department of State is asking you gentlemen to give us.
I have sat there at my desk day after day and year after year, and I have seen the cases come through the Department of State in regard to the piracy of American works. I am not interested at the moment in discussing those cases, though those cases are of great interest individually to the particular people that are being robbed. I am interested in discussing the cases as a whole, now, and immediately, because the whole of those cases shows that the cultural relations of the world are not being carried on in the best way, that they are being carried on in a way that permits of perversion and distortion, and consequently that if carried far enough they will ruin the whole objective of that large phase in the international policy of the people of the United States; and that phase is not unimportant, gentlemen. It may be general; it may not be legalistic; it may not even be philosophic, but it is important to the people of the United States, because you know and I know, every one of us knows, that “as we think in our hearts, so are we.” As our thoughts and our culture are presented to other peoples, so are their opinions of us; and as their thought and their works of art and literature, their music, are presented to us, so they are to us. Only as we can understand each other through cultural relations, that lay the basis, many people are beginning to believe these days, and I think not without a good deal of justification, is there a fundamental basis upon which to build the decent international relations that we want in the future, relations that somehow or other can stir the world out of the chaos in which it now is. We won't do that, unless we understand each other. Cultural relations is one means of helping us to understand each other.
A decent copyright law governing the dissemination of cultural works among countries is a means toward decent cultural relations and effective cultural relations, and that is the reason why we are asking for this additional copyright law at this time. We never needed it before as much as we need it at this time. We need it now in the world of chaos. We need it to build up a reconstructed world after the chaos is over, and I submit to you gentlemen that this question before you is not a question of some little
legalism, some little reservation, some little special interest, if I may use the term. It is something that we have got to consider as one brick in the great wall we are trying to build, that will keep away from us in the future the waves of
chaos that in these days overrun the world and have to a large extent submerged it. Now, that is the setting in which I think we should consider this thing, and I trust that no interest of a special character will allow itself to intrude into the consideration of something that has this large importance.
This copyright convention can be a brick in the wall that we are trying to raise against the wrong kind of international relations that we have heretofore had. Now, I am going into some other phases of this thing. I want to show you some particular instances of what has occurred, to back up the general statements that I have made. Why does it pervert? Why can there be perversions? Why are there perversions?
Well, the very natural reason, the very apparent reason is that people can make money out of them if they are not restrained by law. Law does not always restrain the wrongdoer, but Mr. Kilroe, himself, is a good enough lawyer to know that if he goes into court he would rather have the law on his side.
Mr. KILROE. I would rather have the judge, as a practical matter. [Laughter.]
Mr. McCLURE. Well, if you are going to have the judge, Mr. Kilroe, you would like to have the law, too, would you not?
Mr. KILROE. Yes, I would like to be protected on the two; yes.
Mr. MCCLURE. You would rather have the law than not have the law?
Mr. KILROE. That is what Mr. Choate said years ago.
Mr. McCLURE. I am asking for this. I am asking that the Department of State have the law on its side when, through its diplomatic officers, it makes representations to other countries, and I am asking that we have a real law with teeth in its provisions, rather than the inadequate law which we have usually had in the past, which has proved inadequate over and over again, because we have not been able to use it effectively. We believe we can use this very much more effectively, and because we want in our warfare against the piracy of this time weapons of the twentieth century, not of the nineteenth, we are asking for this modern, improved law governing copyright in the international field.
I said I would bring forth a few instances showing the actual way the thing has worked. Let us take the case of Japan, for instance. Now, Japan, as has been brought out here, made a reservation under the convention that it might limit the translation rights to 10 years. Ten years is now a long time and most of our needs would be taken care of in 10 years if we accept this convention. When the United States becomes a part of it, with the law on our side for 10 years as to translation rights in Japan, I trust that what this dainty little volume that I show you represents will sat this point witness exhibited a very small, almost a vest-pocket size book in Japanese, and also a copy of the large volume containing the English original; also certain other books) not occur again. This nice, dainty, little Japanese volume purports to be a translation of Margaret Mitchell's novel Gone With the Wind. Gentlemen, here is the English original of that novel. Do you suppose that an adequate idea of American culture as expressed in Gone With the Wind is contained in this very nice little volume that I have in my left hand? Possibly. I have not read it. I will be frank to say that. I dare say very few of you would try to read it, even though it seerns so brief.
Now, this same case of Gone With the Wind, which we have had up in the State Department, brings me to another point I should like to illustrate. Here are two volumes that are pretty much the same thing. I think Mr. Randolph would be very much interested in this, as well as all of you. We have discussed these things before. This is an original. This is a photographic piracy, of the English of course, made in Shanghai. Now, if you will look through this, while it is not so nicely gotten up as the Macmillan Co. gets up its volumes, the Shanghai pirate did not do so badly. From page 1 to page 1037 it is exactly the same, photographed page by page, brought out in China and sent to various places, I know not where, for distribution. Is that the way we want American culture distributed? Well, there, perhaps, it does not amount so much to a matter of culture, because it is photographed, but it does amount to a matter of control, effective control by the author.
Now, let us follow such piracies into the South American countries. We know that these pirated editions go from the Far East to the South American markets. Do we want our culture distributed that way to the South American markets, or do we want to try to put a stop to the sale of these unauthorized editions there?
This treaty that we have, of course, is not going, ipso facto, to stop this sort of thing in China, and it is not going, ipso facto, to stop the sale of it in all of South America, but it is getting a start on a correct copyright policy, which, if we develop it as we naturally would propose to do, we can build into a system that will be effectual. We will never build up a copyright law that will be effectual for anything as long as we simply sit around and do nothing about it as we have for the last 10 years.
I submit that we have an opportunity here, and a golden opportunity, to do something about it, because this treaty insofar as it can come into effect among the countries of the world will give a legal basis upon which our Government will stand a very good chance of being able to get this thing stopped, because it will have the law on its side, and because it can, having the law on its side, at least stand up and strive to induce other countries, in many cases that do not admit of any sort of effective action now, to take action that will be favorable to American culture.
Incidentally but very really, the interests of the American authors involved and the American publishers involved, and, most important of course of all, the people who in the United States do the work of manufacturing the books that come out, the books and the motion pictures and all other materials that are copyrighted and sent abroad, will be taken care of.
That brings me to the second point that I want to particularly stress before this committee, and that is the fact that on the basis of commercial relations the United States has much more to gain from this convention that it can possibly be asked to pay for this convention. I am not saying that we would get everything and pay nothing. I myself have no faith whatever in things that come without reciprocity, things that come without payment, and I do not believe anyone gathered around this table bas. We expect to pay for it, but I am going to show you if I can that it is in our favor. It does not mean it is not in favor of the other parties. It is in their favor, too; in order to be internationally good it must be good for everybody. It is good for us. It is good for the other parties.
Why will it have a beneficial effect upon the United States? I believe I was expected on this occasion to go a little bit into the history of copyright relations in the United States.
International copyright relations so far as the United States is concerned began with the act passed in 1891. Before that the United States gave no protection by copyright to any foreigner. Foreigners had their works treated in the United States just as we have our works treated in Japan, in the Netherlands, and in many other countries now; but in the year 1891 the Congress enacted a law, under pressure of a group of American authors—Mark Twain I believe was a leading spirit at that time of those who wanted the United States to assume what they considered a more moral attitude toward authors' rights, "authors' rights” and “copyright” meaning the same thing to them.
But the law that was enacted then was subject to a compromise. Now, our good friends the publishers and the printers were instrumental in this compromise. That compromise was that if American law admitted to copyright the works of foreign authors, they must go on manufacturing their works in this country. Now, that is the origin of this manufacturing clause that we have been discussing. That was the compromise under which any sort of international copyright was introduced into the United States.
As time went on that clause was modified so that it applied only to English works, and as time went on various arrangements, agreements, and treaties were entered into by the United States for the purpose of giving better protection to copyright of foreigners' works in this country and of our works in other countries, and gradually a little bit of international law was built up that way.
It has not been effectual. That is the reason we are asking for a better instrument, but it has grown up to some extent. In other words, there are precedents. We are building by evolution. We are not building revolutionarily, trying to introduce something new into the public experience of this country, but it became important more and more for this reason—that we changed from being on an import basis for copyrightable articles to being on an export basis. In other words, before 1890 and before the early years of the present century the United States did not produce much that the world regarded as cultural. The world did not care for it very much and did not take it very much. The emphasis was the other way around. The United States wanted the works of culture and so on from the rest of the world, and we took them. We took them, but gradually we saw that our own authors, our own creative geniuses were able to do better than most of the rest of the world, and therefore it came about that the more farsighted among the American people realized that it became important to protect copyright all over the world, because the effect of that would be to protect Americans. That is why international copyright became for this country a matter of enlightened self-interest.
Formerly that type of "commodities"—if you use the usual commercial term-came into the United States in vastly greater quantities than they went out. Now, on the other hand, the export balance is very great. I believe Mr. Kilroe will not deny what I say when I