ADDENDA

STATEMENT OF M. L. RANEY

[M. Llewellyn Raney, speaking on H. R. 6990 in behalf of the American Association for the Advancement of Science]

THE UNIVERSITY OF CHICAGO,

To the COMMITTEE ON PATENTS,

April 3, 1930.

House of Representatives:

This measure is a duplicate of H. R. 8912, introduced January 9, 1928, and that in turn was the same as H. R. 10434, introduced March 16, 1926, in the first session of the Sixty-ninth Congress, upon which hearings were conducted April 15, 16, 29, and 30, 1926, covering in print 342 pages. Even the date on which the act was to go into effect, according to section 67, is left as 1st day of January, 1927. There is the same failure to provide for free use of music by churches or public schools where the performance is given for charitable, educational, or religious purposes without charge for admission. There is the same loosening up of control in the motion-picture sections and upon newspapers engaging authors for hire. There is the same extraordinary expansion in the so-called innocent infringement and assignment sections as pointed out by the register of copyrights, and the same reactionary provisions regarding importation. The measure disregards the fact that on June 2, 1928. a new and greatly improved convention, creating an international union for the protection of literary and artistic works was signed at Rome with delegates from 53 countries, including our own, in attendance.

This measure is a general revision, the fifth in our history, following those of 1831, 1870, 1891, and 1909. At such a time, especially in view of our unfortunate history and the amount of international attention now focused on the subject, it is incumbent upon us to get a firm grip on the nature of copyright and have in mind the larger outlines of its historical development.

The copyright property is a temporary grant by society to the author only. He may assign it, and in time of legislation the assigns are apt to be the most heard, but the fact remains that the relation of author and assign is purely one of contract, as in the disposal of any other property, whereas the nature of the property the author has for disposal is fixed by society in reference to its own interest.

The immaterial property of exclusive right to reproduce an intellectual work is a concession, not a natural, i. e., an absolute, right. There is no such thing as an absolute right, not even to life itself, since society can take it in its own defense, whether on the battle front or in the electric chair. It is a grant for the advancement of the race, and as such must dovetail with other grants to secure the greatest good to the greatest number.

The world was slow to yield this privilege to the author. The entire literature of Greece, Rome, and the Middle Ages was recorded without the slightest glimmer of feeling any obligation to the author in the multiplication of his work. And there was much multiplication, even in the manuscript period, as witness the existence of 10,000 copyists in Paris and Orleans alone.

But it was the invention of the printing press, in the middle of the fifteenth century, that first drew attention sharply to the profession of authorship, the two and a half centuries passed before the Statute of Anne, the first copyright act, in 1710, gave the author the exclusive right to publish. Its happening then was a fluke. Gentlemen petitioning Parliament for their accustomed fish got at last a stone.

Copyright grants were made throughout the period between the invention of printing in 1451 and the Statute of Anne in 1710, but to court favorites, not authors. Church and State soon got frightened at the specter of a free press, subversive of the existing order, and copyright was used as the means of censorship. Only approved books could be issued, and the machinery finally, in 1556,

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hit upon was the establishment of a printers' guild known as the Stationers' Co. of London, to whose members alone printing grants were made. Only books entered in its register and under members' names were allowed publication. Authors were brought and sold like chattels and bequeathed in wills. License of this company had to be renewed from time to time upon application to Parliament. The appeal was made once too often, for by 1694, when the last of the royal licensing acts expired, authors had attained prominence and some, like Dean Swift, figured potently in government. So when the stationers appeared as usual for a renewal of the power to master independent publishers, the authors took a hand and in the measure that in 1710 became law they were amazed to find that two things had occurred: First, the exclusive right to publish was given authors, not Stationers' Co. members; and, second, a copyright term of 14 years on new books, with renewal for a similar term, if the author was still alive, was established. Here was challenge to two ancient assumptions-publishers' ownership of copyright and its perpetuity. The statute was fought bitterly in the courts and not disposed of until 1774, by an affirmative vote of the House of Lords. Thirteen years later the American Constitution appeared and included both these features, finally fixed in interpretation by a Supreme Court decision of 1834. Copyright is statutory, it is limited in term, its purpose is to promote the progress of science, i. e., to foster education, and the means is to incite authors to production by securing them exclusive right to their writings for limited times. Copyright, then, is the affair of authors and their public, and the sole proper function of legislation is to prevent infringement. Give the author sole charge to the gate of his working plant. Control the wall against intrusion. Arrest, eject, and punish any that does break in--“ infringe.” But there the legislator's duty ends. Inside the wall, the author deals with his workmen as he chooses, consistent with the public weal.

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Authors and inventors are covered by the same section of the Constitution, and they entered legislation together in the first session of Congress in H. R. 10, presented June 23, 1789. But by the second session, when enactment was reached, they got separated. To the inventor a 14-year patent was given, April 10, 1790, and to the author copyright for a similar term, May 31, 1790. Between the two grants, however, there was a most important difference. Patent was bestowed on a citizen * * 'any person," copyright on * or resident" here. Anybody with a new and useful idea, live where he might, could get a patent. Under this stimulus, even in world-wide competition, we have proven the most inventive of peoples and have enjoyed the usufruct of brains everywhere. But no book, however great its merit, could circulate in the United States under legal protection against thieves unless its author lived here. Under such a limitation we were turned into a nation of literary pirates a long hundred years, and American literature languished. In 1891 the requirement of residence was at last repealed as a condition of copyright, though the equally indefensible one of American manufacture was left in its place. In 1909 this latter requirement was removed from books in foreign languages. But to-day it is still true that a work in English is legally open to piracy unless it be made here. Fortunately, our practice has for a generation been superior to our law. Piracy has become odious, and few British authors feel compelled to reprint here to escape such a danger. Canada has recently retaliated effectively with a similar clause, applicable to nonunion countries, and aimed, of course, at us.

The copyright duty that dwarfs all others before Congress is to remove this stain from the Nation's honor that has now shamed us for 140 years. It keeps us out of the literary family of nations, from which we, almost alone among nations of the first rank, are absent. If English copyright is not good here, then American copyright is not good in the union and double publication is mutually necessary. We should lose no time in qualifying for membership, and that in the most advanced class with the fewest words possible. For nearly a century and a half our honor has been covered over with the dollar sign. Let us erase it completely at once when we do enter. Let us ratify the convention of 1928, which, in addition to incorporating the new uses now found for authors' work through radio diffusion, the cinematograph, and reproduction by mechanical instruments, scores the great advance by safeguarding the author's moral right over his work in stipulating that under all circumstances he retains the right to claim the paternity of his work as well as the right to object to every defamation, mutilation, or other modification of it which may be prejudicial to his honor or to his reputation.

There is now general agreement that we should enter. Authors and their readers agree on this. Publishers are no longer divided. Printers and their allies concede the propriety of it. And the motion-picture industry indorse it. Only the phonograph group has thus far appeared in open opposition, but its lament that it would find difficulty in coming to terms with authors thereafter, whereas present law allows them freedom to take where they like, can not be received with great sympathy.

One further difficulty remains, then I am done. A small group of publishers, somewhat dubiously supported by the trade-union leaders, demand an antecedent revision whereby in cases where there is a copyrighted American reprint of a foreign work in English the reprinter shall be the sole medium of acquiring the original. The objections to this proposal have in one form or another been voiced by organized education and science for 40 years. The details need not here be repeated, but the case may be distinctly stated as follows:

1. It is out of accord with foreign law, since (a) England, as the courts have construed, allows importation of originals for use when reprinting occurs, and England is followed by Australia, Newfoundland, New Zealand, and South Africa. (b) Canada permits two copies of any union publication for use. (c) As Tauchnitz, the German reprinter, himself says, the German law gives free course to the originals of his issues. (d) Belgium bars only illicit editions. (e) Switzerland, seat of the union, in its recent act of 1922, allows unhampered circulation of all legitimate publications, and that despite its trilingual population and the international exchange situation. (f) Other laws, like the union itself, are silent.

2. The proposal could not be enforced even if it were enacted into law, except for bulk shipments, which the present law sufficies to prevent, and the only result would be the reduction of education's simple, normal ways of getting its necessary material to a bootlegging basis, because buyer, customs officer, and postmaster would not generally know the truth about originals and reprints, while the register of copyrights would not have the time to tell, if they asked. 3. The proposal is needless if reprinting is confined to the cases economically sound; that is, popular works of very large sale. Here the laws of trade will continue to give the American publisher all the support he needs, but the public should not be forced by law to support mistakes. It leads to more of

them.

4. The announced purpose of the proposal is to give British authors wider sale in the United States, yet the counsel of the British authors is on record as assenting to the continuance of past American practice.

It is understood that the publishers are now ready to concede to public libraries the right to import directly foreign originals in English which are reprinted and copyrighted here, but to deny everybody the right to import a reprint from any other than the country of origin as well as the right to import a foreign reprint of an American copyrighted work. It is sound practice to bar all piratical editions. It is also right to prevent the trade from stocking the foreign, even though authorized, reprint of an American copyrighted work. It is, furthermore, easily understandable that as there have been fake libraries, necessitating a tightening of definition in the present bill, so certain tradesmen have abused the privilege of importing single copies for alleged use and there is the necessity of blocking this abuse. The remedy proposed, however, is a bit drastic, since it penalizes educators and scientists as severely as the fakers. Let me suggest that the libraries be allowed to continue the privilege of importing for use single copies of any authorized edition, and that to members of educational institutions there be accorded the privilege of importing directly for use originals in English which are reprinted and copyrighted here. There could hardly be any objection thus to enrich other libraries of the United States as well as the Library of Congress with every legitimate issue, and to convenience such serious users of books as scholars and scientists with what they find themselves needing in the simplest way possible, especially since they would be the last to suspect that the law contained any danger for them in exercising so natural a privilege. Their needs would be too few to embarrass the trade, but blocking them, even temporarily, might embarrass important undertakings. To accomplish these two results, first strike out from the first line of the proposed amendment, section 30 (a), (b), (c), the words "in the country of origin"; and, second, in section 30 (a), after "for the encouragement of the fine arts," insert "or the members of the same."

Allow me again to call attention to the fact that the bill, presumably by inadvertence, fails to make the accustomed provision for the unhampered use by

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churches and schools of copyrighted music in programs to which no admission is charged. It is understood that the draftsmen of the measure are ready to insert in section 1 (i) after the word " publicly" the words "for profit."

Finally, since the register of copyrights, who contributed about two-thirds of the text of the Vestal bill through having written the Perkins bill, its predecessor, is absent from the country during this second and, presumably, final set of hearings on this bill, it is right to call the committee's attention back to his valuable comparison of these two measures as recorded in the hearings on H. R. 10434, pages 226 to 248, especially upon the following points:

1. The unusual extension of innocent infringer" provisions. It is no answer to say that this would have a tendency to induce registration. It is an invasion of the author's right, none the less, and an unwarranted setting aside of the honored old legal maxim that "ignorance excuses no one."

2. The untoward effect of the bill's provision respecting acknowledgments of instruments taken abroad.

3. The cumbrous extension of affidavits attesting American manufacture from books only, as in present law, to lithographs, photogravure, photo-engraving, "or reproduction by any kindred process or any process of manufacture hereafter devised," adding tremendously to the burdens of the copyright office without any apparent commensurate advantage, since, though more than a half million such affidavits have now been filed in the copyright office, only one reported copyright case has been found where the affidavit has ever been referred to.

4. The omission of eighteen sections of the Perkins bill from the Vestal bill. Though a few of these provisions are incorporated in whole or in part in other wording, they will all bear rereading.

5. Though at the time that review was given, in 1926, the Rome convention of 1928 had not been signed, Mr. Solberg, were he here, would strongly urge our ratification of the later for the earlier convention, since it is not only more up-to-date in covering the new uses to which an author's work may be put but scores that advance which awakened the greatest enthusiasm among the delegates whereby, as noted above, the author's moral right is safeguarded against a use of his work prejudicial to his honor or to his reputation. Industry's shyness at that provision is understandable, but the purpose of copyright is to give the author the exclusive use of his expression and he should be the last judge of whether the expression keeps true or not. Out since 1887, let us enter on a present day basis.

AMENDMENTS SUGGESTED BY THE INTERNATIONAL ALLIED PRINTING TRADES ASSOCIATION, REPRESENTING INTERNATIONAL TYPOGRAPHICAL UNION; INTERNATIONAL PRINTING PRESSMEN'S AND ASSISTANTS UNION; INTERNATIONAL BROTHERHOOD OF BOOKBINDERS; INTERNATIONAL STEROTYPERS AND ELECTROTYPERS UNION; INTERNATIONAL PHOTO-ENGRAVERS UNION

The International Allied Printing Trades Association of The American . Federation of Labor afford their approval to H. R. 6990 and request the passage of the measure. This bill represents extended consultation and cooperation among the different groups whose interests are touched by copyright legislation, and in its manufacturing provisions represents conferences and compromises between employing printers, the printing trades unions, publishers and authors. These conferences originated with the desire of authors to secure protection for their works abroad. To make this possible the printing trades unions and employing printers agreed to give up the requirement as to American manufacture of works created by foreign authors. In the arrangement that resulted it was mutually agreed that the requirements as to manufacture should be continued in the case of American citizens and that the importation provision should be such as to encourage American : manufacture of foreign works.

The bill as introduced was carefully drafted four years ago and was satisfactory to the four groups mentioned above. However, as with other sections of the bill, every phase of sections 28, 29, and 30 have had careful consideration during this time, as a result of which there now appear to be certain technical points of drafting that ought to be changed, and the same groups are in agreement on such perfecting of the sections, both as to principle and wording. The printing trades unions respectfully request, therefore, the substitution of the following sections for sections 28 and 29:

66 MANUFACTURE AND IMPORTATION

"SEC. 28. Except as in this act otherwise expressly provided, all copies of any copyright material which shall be distributed in the United States in book, pamphlet, map, or sheet form shall be printed from type set within the limits of the United States or its dependencies, either by hand or by the aid of any kind of typesetting machine, and/or from plates made within the limits of the United States or its dependencies from type set therein; or, if the text be produced by lithographic, mimeographic, photographic, or photo-engraving or any kindred process or any other process of reproduction now or hereafter devised, then by a process wholly performed within the limits of the United States or its dependencies; and the printing or other reproduction of the text, and the binding of said book, or pamphlet shall be performed within the limits of the United States or its dependencies. Said requirements shall extend also to any copyright illustrations within any book, pamphlet or sheet except where the subjects represented are located in a foreign country and/or illustrate any scientific or technical work or reproduce a work of art. Said requirements shall not apply to works in raised characters for the use of the blind nor to works by authors who are nationals of a foreign country.

"SEC. 29. That wherever manufacture is required in the United States or its dependencies under the preceding section, an affidavit under the official seal of any officer authorized to administer oaths within the United States or its dependencies, duly made by the owner of the copyright or by the owner of any right to print, produce, or distribute such work in the United States in book, pamphlet, map, or sheet form, or by any such owner's duly authorized agent or representative residing in the United States or its dependencies, shall be filed in the copyright office within 60 days after such publication setting forth the manner in which compliance has been had with all requirements of the preceding section. Such affidavit shall state also the place where, and the establishment or establishments in which, such type was set and/or plates were made or where lithograph, photogravure, photo-engraving, or reproduction by any kindred process or any other process of reproduction now or hereafter devised, and/or printing and binding, were performed, and the date of completion of printing of the work or the date of publication. At any time or times when compliance with such preceding section is requisite unless said affidavit shall be filed or the court shall find that the failure to file said affidavit was due to excusable neglect, no claim for registration may be filed and no action in respect of an infringement of copyright in said work or any right or rights therein shall be instituted or maintained by any person who, under the provisions of this section, might have filed this affidavit."

Section 29 as drafted in lines 11 and 12 refers to subsections of section 37 (a) and (b). Close reading of the text shows that it would be possible for the copyright office to change the content of these two subsections and therefore change the intention of this section 29, which was intended to apply to all printed material. For example, it would appear to us to be illogical to have this provision apply to books of general character and at the same time not apply to plays printed in book form; to have it apply to music in book form and not to sheet music. It is equally illogical to have it so worded as to include charts and not to include maps. We join with the publishers of maps in asking that they be covered by the provisions of this section.

Under the present law failure to print in America forfeits protection on all rights in the work. Under H. R. 6990, section 29, as introduced, failure to print would invalidate only an author's printed book rights. (See p. 24, lines 10, 11, 12, and 13 of the bill.) We feel that this is not sufficient protection for the printer, and we ask that if an American author's work be printed abroad and imported into America for distribution without compliance with the American manufacturing section, he should lose not only his right to his exclusive protection on the book rights but his exclusive protection on other rights emanating from his property. We also request that in order to strengthen this provision the words "subject to the provision of this act" be added at the end of line 3 on the first page. As stated above, the Authors' League of America and the National Association of Book Publishers agree with the printing trades unions as to these changes.

No other amendments are of particular interest to the printing trades unions except the proposed revision of the importation section, which represents an agreemnt between authors, publishers, and librarians. This revision of section 30, as submited by the National Association of Book Publishers, has our