Mr. SOLBERG. This obligatory American printing must be abrogated so far as concerns the books of foreign authors, who are nationals of countries within the International Copyright Union, in order to permit the United States to adhere to the Berne copyright convention. The copyright bill, H. R. 12459, which passed the House of Representatives on January 13, 1931, so provided. The present copyright bills, H. R. 139 and S. 176, also provide for this. If copyright protection in the United States can hereafter be assured to British authors from the time of the creation of their books, then, in the natural course of business, it is reasonable to believe that a considerable percentage of such books produced in England hereafter may voluntarily be printed or reprinted in the United States. The crux of the situation is that the British author has no protection until his work is printed. The legislation we ought to have should protect him from the time his book is created. Then he may have time, with protection, to comply with any formality that Congress in its wisdom shall finally prescribe. But first of all, he should be assured that protection. Mr. DIES. Is there any provision in the laws of any other country such as that? Mr. SOLBERG. You mean for compulsory printing? Mr. DIES. Yes. Mr. SOLBERG. None except Canada and New Zealand. The CHAIRMAN. Copyright is granted without any formality. The CHAIRMAN. Yes. Mr. SOLBERG. The articles of convention, including those of Rome, require, and they are in force in all these countries, even in Canada and New Zealand, that the author shall be protected without any formality. It is automatic protection. The CHAIRMAN. That is in the Roman convention; is that right, Mr. McClure? Mr. McCLURE. That there shall be automatic protection? The CHAIRMAN. Yes, without any formality. Mr. MCCLURE. Yes. Mr. DIES. The question of printing in that particular country has nothing to do with it at all? Mr. SOLBERG. Nothing. So far as the American author's book is concerned, the natural and usual thing is to print in the United States, and that is what is being done. Most American publishers have their own printing establishments, and it is indefensible to impose on all book publishers the irritating formality of executing an affidavit in the case of every book issued by them that they have used their own presses. The new bills submitted place this burden also upon all newspapersas if publishers of newspapers would propose going out of the country to print their daily issues. The absurdity of such provisions is manifest upon a bare statement. But these bills go from absurdity to the possibility of gross injustice when they provide that the author's copyright in his book shall be forfeited simply upon failure to file within sixty days such an affidavit of compliance with the requirement of American manufacture. This loss of the author's entire literary property may happen even though he has complied as to the actual printing of his book at home, if he has simply failed to file this superfluous affidavit. If it is not possible to secure the entire elimination of the manufacturing requirements, then at least, in lieu of requiring the filing of an affidavit in the Copyright Office with every article depositeda collection which in 10 years would exceed a million-the sensible requirement would be to provide for the filing of such affidavit of American manufacture with the court to support a suit for infringement, when instituted? The CHAIRMAN. In other words, you would grant a copyright without any copy deposited whatever? Mr. SOLBERG. Yes. The CHAIRMAN. Such as a dramatic composition? Mr. SOLBERG. If I make a chair, it is mine without registration.. Why have a book? Mr. DIES. Isn't that merely evidence of some sort? Mr. SOLBERG. That is merely another end. I think I have expressed myself very forcibly upon the question of evidence, but I could enlarge very much upon it. The CHAIRMAN. Doesn't that prevent plagiarism to some extent, the fact that you make an affidavit that this book is the product of your own mind, and you swear to it? Does that prevent some unscrupulous author, who might steal somebody else's work knowing he makes an affidavit, from doing it? Wouldn't that prevent plagiarism? Mr. SOLBERG. You are thinking of an affidavit of another character. The affidavit now filed has nothing to do with authorship. It is only with regard to American manufacture. But suppose there was required an affidavit to that effect; wouldn't the practical result be that that is buried in the records of the Copyright Office? Millions of them would be there. The affidavits already filed since 1891 have never been taken from the shelves. Nobody is interested in them. They accept the thing. Harper & Bros. on the title page, printed there or on back of the title is sufficient, whether they swear to printing or not. Harpers might very well say, "Well, hang it all, why have a printing establishment? Do you expect me to go around the corner, or out of the State, or out of the country and have it done when I have gone to the expense of setting up a printing plant of my own "? And the newspapers; some of the daily newspapers have registered from 10,000 to 15,000 registrations annually, and they have to swear 15,000 times that they printed their papers in their own offices. The incorporation of this obligatory American manufacture brought into our legislation for the first time the restrictions upon the importation of copies of the foreign author's own edition of his book which are contained in the copyright statutes now in force. The new copyright bills propose further unjust restrictions upon the reasonable right of every American book lover, and every student and teacher and university professor to import a copy for use of a foreign author's own authorized edition of his book, when the book is in English. The purpose of international copyright protection is to secure to all authors, automatically, legal protection for their works everywhere. The product of an author's mind is property of a kind that lends itself to such world protection. Under modern conditions an author can send his book to all parts of the world, but he should be assured that his legal right in it will be respected wherever it goes, and, as a corollary, that authorized copies of his book will be permitted to go unchallenged to any part of the world. Fifty years or so ago Professor Shaler, of Harvard, printed these wise words in his little book entitled "Thoughts on the Nature of Intellectual Property ": * * * * When we come to weigh the rights of the several sorts of property which can be held by man, and in this judgment take into consideration only the absolute question of justice, leaving out the limitations of expediency and of prejudice, it will be clearly seen that intellectual property is, after all, the only absolute possession in the world. The man who brings out of nothingness some child of his thought has rights therein which can not belong to any other sort of property. The inventor of a book or other contrivance of thought holds his property, as a god holds it, by right of creation. So the restrictions which we may cast around the property of intellect must be made with the confession of the rightfulness of that property. They must be made with the acceptance of the proposition that it has the same sancities as other human interests, and that society is as much interested in maintaining its bounds as it is in protecting ancestral acres, or the other well accepted forms of property. Whatever tends to lower the protection given to intellectual property is so much taken from the forces which have been active in securing the advances of society during the last centuries. For more than a hundred years we have to repeat Professor Shaler's words-" cast restrictions around the property of intellect," and for 40 years our copyright legislation has failed to take sufficiently into consideration "only the absolute question of justice," and has persistently applied the "limitations of expediency and of prejudice" with the result that as regards international copyright the United States occupies an undignified and criticized position. Copyright advancement: One of the most fruitful agencies for bringing about friendly relations between different peoples is found in their printed literature. There can be no question of the distinct advantages of a free and full exchange of books and magazines between the United States and European countries. One great hindrance to this is the present lack of adequate and truly reciprocal copyright protection. A great and persistent effort has been made to perfect such international protection for authors. It has resulted in the formation of the International Copyright Union which came into existence in 1887. That union now includes some 36 leading countries, minus the United States, Russia, and China, besides the Free City of Danzig, and a long list of colonies and dependencies. As this committee is well aware, the entry of the United States into this union has been much discussed and proposals of law to enable the United States to enter have been several times introduced to the attention of Congress. The bill (H. R. 12549) contained such proposal as also do the two present bills for the general revision of the copyright legislation, H. R. 139 and S. 176, namely, provision for the adherence of the United States to the Berne convention for the protection of literary and artistic works as revised at Rome and signed there on June 2, 1928. The Berne convention was sent by the President to the Senate last session, and in his annual message to Congress he expresses his hope that "necessary legislation will be enacted during this Congress 1 which will make it possible for further consideration to be given to the copyright convention." In my opinion, the entry of the United States into the International Copyright Union is the greatest copyright advance now possible. It would give great satisfaction to the intellectual producers of the entire world and would secure the automatic legal protection throughout all the countries which are members of the Copyright Union for all works by American authors. . It seems futile to hope for the enactment of a general revision bill during this session, but it may be possible to pass a brief bill for this one purpose with no proposals for copyright amendment except such as are required to bring our copyright law into accord with the articles of the convention. A draft for such a bill reads as follows: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That copyright throughout the United States and its dependencies shall subsist in the work of alien authors not domiciled in the United States who are nationals of any country which is a member of the International Copyright Union, by virtue of the adherence of the United States to the convention of Berne for the protection of literary and artistic works of September 9, 1886, as revised at Berlin on November 13, 1908, and at Rome on June 2, 1928. SEC. 2. From and after the date upon which the adherence of the United States to the said convention of 1928 becomes effective, copyright protection shall be accorded without formality for works by such alien authors thereafter created, as well as for all works which on such data are protected by copyright in any country which is a member of the International Copyright Union: Provided, That as to copyright in works not previously copyrighted in the United States, no right or remedy given pursuant to this act shall prejudice lawful acts done or rights in or in connection with copies lawfully made or the continuance of business undertakings or enterprises lawfully undertaken within the United States or any of its dependencies prior to the date on which the adherence of the United States to the said convention of 1928 became effective; and the author or other owner of such copyright or person claiming under him shall not be entitled to bring action against any person who has prior to such date taken any action in connection with the exploitation, production, reproduction, circulation, or performance (in a manner which at the time was not unlawful) of any such work whereby he has incurred any substantial expenditure or liability. The CHAIRMAN. In other words, it is not retroactive? Mr. SOLBERG. No; this particular thing is not retroactive. The CHAIRMAN. Whatever action someone took before would have no effect? Mr. SOLBERG. It would not be retroactive in its effect so far as works of foreign authors are concerned, and it would not be retroactive in the sense you are thinking, namely, that they could not bring legal proceedings against anyone The CHAIRMAN. Where there was no law before? Mr. SOLBERG. Certainly not. That must be safeguarded, and this language is taken from one of the well-prepared New York bills. SEC. 3. Copyright is hereby granted and secured by this act to all authors entitled thereto from and after the creation of their work, whether published or unpublished, including works of architecture and choregraphic works and pantomimes, and the duration and termination of such copyright shall be governed by the provisions of sections 23 and 24 of the act of March 4, 1909 (U. S. C., title 17): Provided, That the duration of copyright in the United States shall not in the case of the work of any alien author extend beyond the date upon which such work has fallen into the public domain in the country of its origin as defined in said convention of 1928. SEC. 4. The rights granted in section 1 of the said act of 1909 (U. S. C., title 17) shall include the exclusive right of the author to communicate his work for profit to the public by any system of broadcasting (including television). SEC. 5. The author of any copyrighted work, even after the assignment of the copyright in such work, shall at all times have the right to claim the authorship of his work, and the right to oppose every distortion, mutilation, or other modification of the said work which might be prejudicial to his honor or to his reputation, as well as the right to restrain the publication and/or the performance of the mutilated work. SEC. 6. The Supreme Court of the United States shall prescribe such additional or modified rules and regulations as may be necessary for practice and procedure in any action, suit, or proceeding instituted for infringement under the provisions of this act. SEC. 7. This act shall take effect from the date of its passage. The CHAIRMAN. I thank you for your very illuminating and instructive address. I am sure the committee will avail itself of the opportunity to read your address. Mr. DIES. It was just trying to get one point clear in my mind. It will be necessary for us in order to join this convention to do away with this provision requiring the foreign author to print his work in the United States. Mr. SOLBERG. Absolutely. Mr. DIES. We would have to do away with that? Mr. SOLBERG. But that now, however, only applies to English authors. The foreign author has already been released. The CHAIRMAN. I am going to call upon Mr. Karl Fenning, professor of patent law, to say a few words. STATEMENT OF KARL FENNING Mr. FENNING. Mr. Chairman, I have just two or three words to say. The patent laws and the copyright laws are both based on the same section of the Constitution of the United States. It is notable that that section does not use the word "patents" nor does it use the word "copyrights." When the Constitution was adopted all of our States, with a single exception, had copyright laws in effect. Only one included in the copyright law provision for patents. Nevertheless, the proposal of the constitutional convention in one of the drafts of the Constitution was to grant to authors copyrights, using the word "copyright." The Constitution, however, as finally adopted, as I say, did not use the word "copyright," and, therefore, as I see it, Congress is not given directly the right to enact copyright legislation. It is given solely the right to grant an exclusive right to the author in his writing. Several of the State laws definitely provided that a copyrighted article must be sold at a reasonable price. If it was not sold at a reasonable price, by proper proceeding, a license could be given to some one else to manufacture and sell the copyrighted article. The CHAIRMAN. You mean that was in the State laws? Mr. FENNING. That was in the State laws prior to the Constitution. The CHAIRMAN. Fixing the price? Mr. FENNING. If some one objected to a book being sold for $27 or $16, say, they might go before the general court or the proper authority-I think the Secretary of State in some instances-and say the book was being sold at too high a price" I will print that 113839-32- -3 |