with the make-up schedule of the magazine. Under the existing copyright law the magazine publisher is made responsible for this material, if it is alleged to infringe a copyright, even though he had no practical control of it or effective check upon it. The advertisers are in nearly all cases responsible business enterprises, and I feel very strongly that a modern copyright law should recognize the practical facts of the business situation. It should provide that one who feels that his copyright property has been infringed by advertising matter, should sue the advertiser or the advertising agency, or both, and not the magazine.

The CHAIRMAN. Are they always financially responsible people? Mr. WARNER. I think almost without exception they have to be or they would not be in a position to stand responsibility for the advertising. The agencies themselves are in almost all cases thoroughly responsible, and if they are not, the advertiser behind them must be, or he would not be in a position to buy the advertising. I see very little probability of not being responsible for recovery.

The CHAIRMAN. Are the members of your organization usually careful in the advertising material that they print in the magazines? Do they make any kind of investigation before it is inserted? Mr. WARNER. As to truth, yes; very extensive.

The CHAIRMAN. I know the New York Times does that.

Mr. WARNER. I think you will find the magazine organizations advance a very general effort to that end, and they are very careful for the protection of the service that they render. Looked at from purely selfish interests, it would be foolish of them not to recognize the destructive possibilities of publishing statements for which they carry responsibility and which were not based on facts.

Having a keen realization of the burden which all of you gentlemen are carrying under the heavy pressure of legislative matters of great moment at the present time, I have tried in these few remarks merely to touch upon some of the basic features of the magazine industry which I think it important to call to the attention of the committee. I do, however, wish to state to the committee that the National Publishers Association, which I here represent, will gladly cooperate with you gentlemen to the full in your desire to frame a measure as to copyright which is fair and just to the writer whom you seek to protect, and to the various business interests that must needs operate under such law. For the members of my association, I say to you that we are prepared to pay and are paying to the writers the full value of the literary works which we acquire from them. All that we ask is that in your revision of the law you do not expose us to embarrassments and harassments which will impede the legitimate conduct of our business without any corresponding advantage to the authors with whom we are entirely willing to coop

If this committee desires any further information from us as to the practical operation of proposed provisions of a revised law, we are at your disposal.

Mr. RICH. You made a statement awhile ago-if an infringement on some copyright had taken place and you were being sued, an injunction would be more damaging to your magazine that it would be if you were compelled to pay financial damages owing to the fact that it would retard the magazine going out on time. Would that be to the public more inconvenience, also?

Mr. WARNER. Well, it would not be anything like as inconvenient to the public as it would be damage to the publisher, but it is entirely possible to conceive, with a circultion of two and a half millions, as some magazines have, that a time limit in the minds of their readers is important. They look for a magazine on a certain day because it is published the same day each month.

Mr. RICH. Then I think the public would be inconvenienced also. Mr. WARNER. But they would get the magazine eventually, I

presume.

The CHAIRMAN. Congressman Rich has brought out a very interesting point. Let's look at it from another angle. There is a book published to-day, President Hoover Under Two Flags, which is supposed to be a very bitter attack against President Hoover. Suppose a magazine came out with a serial publication and published the first chapter, which was very bitter in its denunciations, and the President of the United States wanted to protect his interests and protect himself from being put before the people of our Republic in a most damaging light. If you deny the right of injunction, you give him financial retribution only, financial damage, so to speak. The publication must continue to go on and all he can get through an equity court is damages to his reputation because of the publication in that magazine. Is that right?

Mr. WARNER. I am not a lawyer. I would not want to suggest what the remedy might be, but if any libelous or scandalous matter is undertaken by a publisher, there are remedies other than injunction under copyright.

The CHAIRMAN. I am just talking on the basis of an injunction because I have been very sympathetically disposed toward putting into new law a feature which will eliminate the injunction; but I am trying to think how you can provide-after a serial publication begins, you would not want to have it stopped after the first or second issue.

Mr. WARNER. We are not asking for injunctive relief as against copyright infringement—that is, as far as we are touching on. Scandal or libel comes under another statute.

If I may, there are two other points that you brought up. You raised the question of truth in advertising. This matter came up rather seriously four years ago and through cooperation, first with the Federal Trade Commission and then through the States by all the machinery of the National Better Business Bureau, the national association cooperated with that bureau in the eliminating of questionable advertising as to its truth or its injury to the public by publishing it.

The CHAIRMAN. Is that National Better Business Bureau a central bureau to which all magazines refer to report the character, the integrity, and honesty of their advertisers?

Mr. WARNER. That is true, and we have excluded from our organization all such magazines that come into question.

The CHAIRMAN. The Better Business Bureau bears the same relation to your association as a board of directors?

Mr. WARNER. It deals with all business problems, of interference in business problems, and we set this up as a side line in that national organization to take care of investigations that individual publishers could not carry on, and it has resulted in the prevention

of 95 per cent of the fraudulent advertising; and they appreciate our cooperation.

Now, in connection with the statement of the authors. I was here during their testimony. There were two or three of them that mentioned cases.

The CHAIRMAN. I have stated the facts as I heard them. I am trying to rely on my memory.

Mr. WARNER. They stated that they were not against the members of the National Publishers Association. The first witness indicated a series of stories, years ago she didn't say years ago, but they ran 30 years ago. This question came up afterward as to serial rights. Now, that case was threshed out as to particular features of it. When you go back 30 years ago, publishers were buying everything, the complete rights, and the authors were selling them as such. Now, it might be, under the present law, that some magazine publisher of the smaller type, with very few exceptions, magazines are not interested in anything but the first serial rights. Some of those publishers of the smaller magazines might deal with a writer for everything he has and he is glad to sell it for that, and then later some question might arise of something other than the serial rights. We are not protecting those. We feel, as you have indicated, that the serial right is what we are interested in. In fact, the author should have the complete copyright and we get just what we buy, purely a matter of license or contract.

Now, Mr. Osborne and Miss Sillcox both promised me that that would be cleared up on the record, to indicate that none of the responsible magazines do that.

The CHAIRMAN. What I said was based upon my recollection. Mr. WARNER If you will ask for specific cases, I think it will be cleared up.

The CHAIRMAN. Thank you for appearing before our committee. Mr. WARNER. It has been a privilege, sir.

STATEMENT OF ROBERT D. COULSON, COUNSEL FOR THE COPYRIGHT COMMITTEE OF THE NATIONAL PUBLISHERS ASSOCIATION, 40 WALL STREET, NEW YORK

The CHAIRMAN. We have heard a very interesting statement by Mr. Warner, the president of your organization, and we have heard Mr. Lucas present his side. I would like for you to talk to this committee from a legal standpoint and tell us what you think ought to be put in this new bill. I have no hesitancy in expressing the profound regard I have for you and would like for you to cooperate wtih me to incorporate these thoughts in a legal way.

Mr. COULSON. Mr. Chairman, we would be entirely glad to cooperate with the committee in any way we can in connection with new legislation.

The CHAIRMAN. May I invoke your personal cooperation, with me, then?

Mr. COULSON. I will be very glad to give it.

The attitude of the magazines has been that while they have been in the position of having technical, legal material put in the copyright law, that has no relationship and is an anomaly because their interest is the exclusive right to first publication. The association

has, therefore, told the Author's League and others who wanted a modernization of the copyright bill, at the last session, that the National Publishers Association was quite willing to indorse and approve a measure which transferred the legal title to the authors, or, rather, put it in the author and keep it there, provided such a law was drafted on a basis that would permit the magazines to operate in a sound businesslike way, paying to the authors the full value of the particular right in which the magazine is interested, that is, the right of first publication.

At the last session of Congress, when copyright legislation was considered but not passed, and since these hearings have begun we have had a number of general discussions with the Authors' League as to the things they wanted; and I may say that on the legal side there are no insuperable difficulties in giving to the authors that for which they have asked, a full legal title to their literary creations; and we advocate a law which will be a workable law under which not only the magazines, but all the varied business interests that have to deal with literary material and from which fundamentally the authors derive their income-a law that they all can operate under without disturbance of the ordinary course of present business operation. Now, Mr. Warner spoke of some of the factors that existed in which the magazines were interested as a practical matter. In the present copyright law there are provisions which were no doubt quite sound under the conditions that existed when the last revision of the copyright law took place, but which to-day constitute dangers to any business man who is operating in connection with literary material, and they do not carry any corresponding advantage to the authors. This committee is going to revise the copyright law by the elimination of these provisions which the authors themselves say are not a real protection to the legitimate, wellknown author. Such provisions present a danger to the business man because in some cases they invite an action where there is some color of right shown, but where the object is not a protection of a real right, by invoking statutory damages or injunctive relief to force a settlement from the business man without relief as to the right of the claimant. This interferes with the normal course of business.

Now, there are certain other matters which must be dealt with in any revision that makes so radical a change in the copyright law as to create in the author a statutory right in his literary material which he does not lose even by presenting to the publisher in any form, that you would retain ownership in him and without any title in the first publisher. There are certain technical conditions that your committee will, no doubt, have to consider and work over, but I think all I have to say at this moment is that we will be glad to cooperate and work out the details with you. I do not think there is any insuperable obstacle to this committee if it so desires to revise the copyright law.

The CHAIRMAN. May I ask you a few questions?

Mr. COULSON. Certainly.

Mr. CHAIRMAN. In this new bill we propose to have a copyright from creation. In other words, there is a common-law right to every author to the product of his original creation which is more or less a copyright from the beginning but we want that copyright, if infringement takes place, to have the line of demarcation in two

places: First, that where it is recorded and registered and infringment is shown, that he can have recourse to the courts for all the damages he is entitled to receive. Is that agreeable to your organization?

Mr. COULSON. Quite agreeable.

Mr. CHAIRMAN. Secondly, if damages can not be ascertained for infringement of rights, I would like to see a clause in there that would give to the author, whose right is not only a copyright from creation but registered and recorded, the right to statutory damages of $100 to $5,000.

Mr. COULSON. Subject to the qualification that in any amended act you do not set up a system of arbitrary, statutory damages without taking into account the situation of the innocent infringer. I think you will still keep in the Act provisions for innocent infringers. The CHAIRMAN. Where there is an infringement of a copyright and there is no recordation, would you be in favor of an injunction against anyone from violating the copyright of an author?

Mr. COULSON. There is this objection on the part of magazines to the retention of the remedy of injunction. It is only that injunction could be made to cover the issue of a magazine that is already in process of manufacture. Does that answer your question?

The CHAIRMAN. In other words, you don't want to be intimidated on any account by the fear of injunction, whether innocent or guilty, but to give them the right to go into court and claim damages?

Mr. COULSON. Let me explain that, if I may. The damage to the public and to the magazine from any interruption of the normal distribution of a magazine far exceeds the financial interest of an author in the literary material that is infringed. There is so great a disproportion there that it does not justify it, but that would not apply to the instance you mention, Mr. Chairman, that of matter that was libelous or scandalous. That right arises under other provisions of law where injunctive remedy is available, that is a right that you are not touching. You are setting up protection of rights already guaranteed under the Constitution. That has no application to scandal which no magazine has the right to publish.

The CHAIRMAN. In this section of the copyright bill we will not interfere with the inherent right of an individual where libel and slander are involved.

Mr. COULSON. That is quite clear.

The CHAIRMAN. Now, are you in full sympathy with giving the National Publishers Association the things asked for by Mr. Warner? Mr. COULSON. Very much so; I do not think it has ever asked anything but a law under which they can operate reasonably, paying full value for all literary material that they use, and get what they pay for. I want to join with Mr. Warner and Mr. Lucas in saying that if this committee will examine general statements that magazines have taken advantage of authors, they will find that they are inadequate in point of time and represent early stages of the magazine industry, which in its present development is a relatively new thing, or they represent sporadic instances of magazines where an examination of the facts might show there is a good deal of basis for attention on each side of the claim. I think I have had many opportunities to note the attitude of magazines in dealing with the authors, and I say without hesitation that the magazines deal with the authors fairly