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APPENDIX

BRIEF SUBMITTED BY JOHN DASHIELL MYERS IN RE TERM OF COPYRIGHT TOGETHER WITH PROTEST AGAINST AUTOMATIC COPYRIGHT

Dr. WILLIAM I. SIROVICH,

THE JOHN C. WINSTON CO., Philadelphia, Pa., January 26, 1832.

House of Representatives, Washington, D. C.

DEAR DOCTOR SIROVICH: We are sending you a copy of a brief prepared by John Dashiell Myers of Philadelphia which was submitted to the Senate committe during the hearings on copyrights last February. This brief gives very strong arguments against fixing the term of copyright at any period dating from the death of the author, artist, or composer. It also contains very strong arguments against the socalled automatic copyright.

We can send you additional copies of this brief if you desire them. It was printed in full in the report of the hearing before the Senate committee in the last Congress.

As I stated to you in Washington a few days ago, we have no special fault to find with the present copyright law. Nevertheless, we know that it is archaic and does not meet present conditions. Our feeling is that there should be a simple bill drafted covering the principles upon which copyright entries should be made.

The term of copyright in our judgment should be a single period of not more than 50 to 60 years from the date of registration.

We feel very strongly that registration should be required as heretofore. Automatic copyright in our judgment will cause endless confusion and will be of no real advantage to authors, artists, composers, or publishers. Our information from some British publishers with whom we have been in touch is that they would much prefer our American system of registration.

We are in favor of international copyright, but we believe it should be upon the terms of our American laws-not upon the terms of British or foreign laws. It is, of course, now too late for the United States to joint the International Union under the Berne convention. If we join the union now it must be under the Rome convention. There is nothing in the Rome convention which requires a member to accept the British term of copyright, nor to accept automatic copyright. On the contrary, the whole spirit of the Rome convention is that memhers of the union should be permitted to make their own copyright law. This is definitely expressed in article 2 bis, sections 1 and 2. referring to political discourses and lectures; in article 6 bis, section 1, referring to deformation, mutilation, or other modification; in article 7, section 2, referring definitely to the term of copyright; in article 10, referring to extracts for educational publications; in article 11 bis, section 2, referring to radio diffusion; and in article 17, referring to supervision.

In our judgment the simplest procedure would be for Congress to pass a new copyright law, then the Department of State could join the Rome convention by treaty.

We have discussed this matter with the leading textbook publisher of this country and are certain that their ideas will agree with ours in this matter. It is not, however, merely a question of what kind of copyright legislation will be to the interest of the publishers, authors, artists, composers, etc. It seems to us that the interest of the pupils in our schools should be given even greater consideration than those who have a financial interest in the profits to be derived from the sale of copyrighted material. These interests will probably not be represented before you. It is, therefore, the function of your committee to protect their rights.

If we can be of any further service to your committee, please do not hesitate to call upon us.

Sincerely,

562

J. W. ZIEGLER, Vice President.

EXTRACTS FROM A BRIEF PREPARED BY JOHN DASHIELL MYERS, OF PHILADELPHIA, FOR THE VICTOR TALKING MACHINE Co., OF PHILADELPHIA

It is a fundamental principle of international copyright under the union that such copyright shall not depend in any way upon formalities of registration, deposit of copies, or notice of copyright, or indeed upon formalities of any kind. (Berlin convention, art. 4.) The mere production of the work itself gives birth to the monopoly. Registration either in the country of origin of the work or any other country is not required. Such copyright vests automatically without even a claim thereto by the author or deposit of copies anywhere or notice of copyright on the work itself. (Ibid. art. 4.) A measure of extraordinary convenience to the author, this rule works a corresponding inconvenience to the public. Anyone desiring to ascertain the facts determining the existence of copyright in a work supposed to have been published in one of the convention countries has no convenient public record as a source of information to which he can look. He may apply to the owner of the work himself-often an unreliable, because interested, source—but as his only information concerning that owner is to be found in the printed name, if any, on the work in question (ibid. art. 15), the problem of locating such owner in a distant country without even an address as a guide, is one of no small difficulty and may often prove impossible.

In the United States it has been the uninterrupted practice since the beginning of our National Government to require a strict registry of each copyright claim and deposit of copies, and-since 1802-a notice of copyright on each copy of the work. The facilities afforded by our Federal system of government for the maintenance of a central office of public record for registry and deposit are largely responsible for the successful application of this policy. Under the copyright union, however, the erection of a central bureau with such functions of administration as these has not been attempted and may not be expected, in view of the lack of cohesion among its members and the decentralizing influences which exist in any attempted union of rival powers. Moreover, in view of the varying formalities governing grant of copyright found in the laws of the unionist nations, the European policy has been to cut the Gordian knot by abolishing all formalities, with the result that there is no basis for such functions.

If America is to join the union it will mean the abandonment-so far as concerns the grant of copyright to citizens of other countries of the union-of our policy of requiring registration, deposit of copies and notice of copyright, that has been enforced for over a century in this country, and has come to be regarded by the American people as a permanent and unalterable feature of our copyright law. Foreigners would thus acquire copyright here under more liberal conditions than our own citizens and without any notice or public record of the rights so acquired. It would also mean that an American citizen desiring, for instance, to publicly perform or otherwise use a work apparently pub lished in Europe-perhaps years before-must ascertain at his peril the facts determining the copyright status of the work in question. His efforts to secure such facts may be wholly unavailing and it may not be possible to locate either author or publisher or any information that can be relied upon; in such case the American citizen must accept the risks inherent in such use, and if he innocently infringes the monopoly rights of the European, he will be liable in the courts of our own country to the penalty of seizure of the infringing work prescribed by the convention law of the international union. (Berlin convention, arts. 15 and 16.)

THE EUROPEAN METHOD UNACCEPTABLE IN THE UNITED STATES

The issue presented by the Vestal bill is whether the present American method of extending international copyright on a basis of reciprocity, which permits full enforcement of the domestic law of each nation, is to be continued, or whether this policy is to yield to the European method of adopting and enforcing uniformity in the law among nations regulating the grant of copyright. Reciprocity fully protects the monopoly rights of American authors in the foreign countries entering into such relations with the United States and at the same time it involves no surrender of our domestic policy relative to the conditions imposed upon the grant of copyright. Such uniformity, on the other hand, in so far as it would excuse foreigners from the duties imposed on American authors, would require a sacrifice of the policy of our own law and

result in a discrimination against the American author and in favor of the foreign applicant. How vital that sacrifice would be can only be truly appreciated after a thorough consideration of the sources and the history of American legislation dealing with the duties of the applicant for copyright, and particularly with regard to the requirements of registration, deposit of copies, and notice of copyright claim.

Another consideration bearing directly upon the proposal to unite this country with the nations of Europe in the copyright union will be found in the dissimilarity between the American concept of legal monopoly as applied to copyright and the concept of many European nations. Juristic opinion in Europe has tended to regard copyright as a natural monopoly and has inclined to favor a liberal policy by the state in favor of the monopolist and against the publica tendency not in harmony with the American viewpoint or the American Constitution.

In the present state of world unrest, proposals of change are familiar enough. It is well to remember, however, before consenting to the changes in this country's domestic policy which membership in the International Copyright Union would require, that there is no emergency to justify such a step at the present time, and that our present copyright relations with the foreign powers afford alike justice to the foreign author and protection abroad to the American. Presumably the conservatism of America will hesitate long before accepting the supposed necessity for this departure from our domestic policy in the grant of copyright-a policy to which we now turn for consideration.

The first section of the original copyright act (act of May 31, 1790) provided that copyright should subsist "for the term of 14 years from the time of recording the title thereof in the clerk's office, as is hereinafter directed." The same section further provided that the copyright proprietor or his executors or administrators or assigns might enjoy a further term of protection of 14 years, "provided he or they shall cause the title to be a second time recorded and published in the same manner as hereinafter directed," etc.

In section 3 the act declares that no person shall be entitled to its benefitwhere publication had previously occurred-“ unless he shall first deposit, and in all other cases unless he shall before publication deposit, a printed copy of the title of such map, chart, book, or books in the clerk's office of the district court where the author or proprietor shall reside." The clerk is then directed to record the same forthwith, and the proprietor is required, within two months from the date thereof, to publish a copy of such record for four weeks in some newspaper printed in the United States. The author or proprietor is further required by section 4 to deliver to the Secretary of State, within six months after publication, a copy of the map, chart, or book, which copy is to be preserved in the Secretary's office.

Thus we find at the very threshold of copyright history in this country the recognition of the principles of requiring registration as a means of notifying all members of the public of the grant of each individual monopoly and deposit of copies to provide a public record of copyright in published works. Weil says of these requirements:

"The object sought by compelling registration is that third persons, by inquiry, may ascertain whether or not any proposed acts or works would violate any existing statutory copyright. The primary object of requiring the deposit of copies is that the subject matter of works in which copyright is claimed may be made public and available for purposes both of information and of avoiding infringement. A purely secondary object is the enrichment of the Library of Congress." (Weil Copyright Law, 1917, p. 310.)

To demonstrate how continuously Congress has pursued the policy of requiring registration of copyright and deposit of copies, and has successively applied these requirements, with the further requirement of notice of copyright, to the new fields of protection that have from time to time been recognized, we will now briefly survey the subsequent copyright legislation.

In the next copyright enactment of Congress, the act of April 29, 1802, which extended copyright to the arts of designing, engraving, and etching, the same stringent requirements of registration written into the act of 1790 were repeated, and in addition all copyright proprietors were required to give notice of their claim by causing, if a book, the "copy of the record * to be inserted at full length in the title-page or in the page immediately following," with corresponding requirements as to maps and prints. (Secs. 1 and 2.) This requirement as to notice of copyright continued in all subsequent legislation, and a conspicuous feature of our copyright law has come before the

In

Federal courts and its purpose has been interpreted and clearly stated. Sarony v. Burrow Giles (C. C. S. D. N. Y., 1883; 17 Fed, 591, aff. Ill.; U. S. 53), the court, dealing with an infringement of a copyrighted photograph, said: "The object of the statute was to give notice of the copyright to the public; to prevent a person from being punished who ignorantly and innocently reproduces a photograph without knowledge of the protecting copyright."

So, in Bentley v. Tibbals (223 Fed. 247; C. C. A., 2d cir., 1915), the court said:

"The only object of the notice required by the statute is to give notice of the copyright to the public. It is given to the public to prevent any person from making himself subject to the penalties imposed for violation of the copyright without knowledge of the copyright. And when the notice is printed on the title-page or on the page immediately following it of the book copyrighted, there is no possibility of the public being misled as to what matter is copyrighted." (P. 253.)

And, in Stecher Lithographic Co. v. Dunston Lithograph Co. (D. C. W. D. N. Y., 1916; 233 Fed. 601, 603):

"The purpose in requiring publication of notice of copyright is to prevent innocent persons from suffering the penalty of the statute for reproduction of a copyrighted article."

In 1831, when for the first time musical compositions were accorded protection, we find the same requirements of registration, deposit of copies, notice of copyright, and newspaper publication repeated. (Act of February 3, 1931, secs. 1-5.) Section 4 of the act prescribes that the author or proprietor must further cause a copy of his work to be delivered to the clerk of the district court within three months after publication, and that

* It shall be the duty of the clerk of each district court, at least once in every year, to transmit a certified list of all such records of copyright, including the title so recorded, and the dates of record, and also all the several copies of books or other works deposited in his office according to this act, to the Secretary of State, to be preserved in his office."

In other sections of the same act infringements are defined strictly with reference to their occurrence after the recording of the title of the copyrighted work.

In 1834 a short but important supplementary act provided for the recording of the transfer or assignment of copyrights in the office where the original copyright had been deposited and recorded, prescribing that failure to record within 60 days would invalidate the assignment as against any purchaser or mortgagee without notice. (Act of June 30, 1834.)

In 1846 the author or proprietor was required within three months after publication to deliver one copy of his work "to the librarian of the Smithsonian Institution and one copy to the Librarian of Congress Library." of August 10, 1846.)

(Act

In 1856 copyright in a play was extended to cover the dramatic or performing rights therein. The act in effect required of the proprietor the same duties as a condition for the protection of performing rights as has theretofore been prescribed for other copyrights. (Act of August, 1856.)

In 1859 the removal of all copies theretofore deposited in the Department of States, "together with all the records of the Department of State," to the Department of the Interior, was required. (Act of February 5, 1859.)

In 1865 copyright was extended to photographs and the previous requirements of registration, deposit of copies and notice of copyright made applicable with regard to this species of property. (Act of March 3, 1865.) It was further provided that a printed copy of every copyrighted work should be transmitted by the proprietor, within one month after publication, to the Library of Congress at Washington, with the provision for demand for such delivery by the Librarian, where the proprietor failed to transmit. (Secs. 2 and 3.)

The amendatory act of 1867 provided in its first section a penalty of $25 for failure of any proprietor to deliver to the Library of Congress a printed copy of his work. (Act. of February 18, 1867.)

In the revision of 1870 (approved July 8, 1870) "all records and other things relating to copyrights and required by law to be preserved" were placed under the control of the Librarian of Congress, and all copies theretofore deposited in the Department of the Interior were required to be removed to the Library of Congress. (Sec. 85.) Registration of the work was henceforth to be made with the Librarian (sec. 90), who was required to make an annual report to Congress "of the number and description of copyright publications

for which entries have been made during the year" (sec. 85). Provisions for the grant of copyright follow those in the previous acts, vesting such copyright "upon complying with the provisions of this act" (sec. 86), the same to run for 28 years "from the time of recording the title thereof." (sec. 87), with provision for renewal for 14 years upon a second recording and newspaper advertisement of same (sec. 88). Notice of copyright is also similarly prescribed (sec. 97), as is the registration of assignments (sec. 89).

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By this act the proprietor of every copyrighted book or other article was required to mail to the Librarian of Congress at Washington within 10 days after its publication “two complete printed copies thereof, etc." (Sec. 93.) This statutory requirement came before the Federal court for interpretation in Carte v. Evans (27 Fed. 861, 863; C. C. Mass., 1886); the court stating: As the object of the registration is to give notice to the world that the author or proprietor has acquired the exclusive right of publication, the inference is that by two complete printed copies' is meant two printed copies with the title corresponding with the registered title and that for the purpose of identification the registered title shall be substantially reproduced on the title page of the published book."

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The revision of the copyright law in 1873 contained a substantial reenactment of the previous requirements relative to registration, and of deposit of copies and notice of copyright. The grant of copyright is again made to depend upon complying with the provisions of this chapter" (Rev. Stat., sec. 4952) which include the requirements that before publication a printed copy of the title of the book or other article, etc., shall be delivered to the Librarian of Congress, and within 10 days after publication, two copies of the work deposited in the mail addressed to the Librarian of Congress (Rev. Stat., sec. 4956). The same secondardy term of copyright for 14 years is granted “upon recording the title of the work or description of the article as secured a second time, and complying with all other regulations in regard to original copyrights, etc."; and the proprietor must publish a copy of the record in one or more newspapers in the United States for the space of four weeks. (Rev. Stat. sec. 4954.) The act provides further that:

"No person shall maintain an action for infringement of his copyright unless he shall give notice thereof in inserting in the several copies of every edition published, on the title page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some portion of the face or front thereof, or on the face of the substance on which the same shall be mounted, the following words, Entered according to the act of Congress, in the year by A. B., in the office of the Librarian

of Congress, at Washington.'" (Rev. Stat. sec. 4962.)

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Other provisions of the act deal with the duty imposed on the Librarian of recording the copyright data which he receives.

The amendment of the copyright law enacted in 1891, is particularly significant here in view of the fact that six years previous, the Berne convention had completed its labors and launched the International Copyright Union. As before noted, section 13 of this amendatory act contains our first legislative sanction of international copyright. It is significant that in thus extending protection to the works of foreigners this country made its grant of copyright to such foreigners dependent upon full compliance by each foreign applicant for copyright with all the requirements of our law, including that of registry, deposit of copies and notice of copyright. Section 13 of the act begins with the sweeping words "This act shall only apply to a citizen or subject of a foreign state or nation" and continues with the statement of the contingencies in which foreigners are entitled to avail themselves of the protection of our law. The intention to impose on such foreigners the same requirements that are imposed upon our own citizens applying for copyright is clear and unequivocal and the regular practice has been for each foreign author to register and deposit copies in the same way as our own citizens.'

In this act of 1891 the grant of copyright is again made to depend upon complying with the provisions of this chapter" (sec. 1), and the author is

1 One exception only need be noted in this rule. The act of Mar. 28, 1914, excused the foreign author who had published abroad and was entitled to copyright in this country from depositing more than one copy of his work, where the native author was required to deposit two. The reason for this relaxation in the rule requiring deposit was apparently due to a desire to lessen the greater burden and expense imposed on the foreigner in shipping certain deposited works from a distance.

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