the beginning of the period of protection the subject of monopoly is not earmarked and members of the public, being without information from which to determine the expiration of the monopoly, would be slow to use what the law intended should be open to their use. Moreover, as there would be no official record of the grant, a claimed date of expiration could not be readily verified. Thus monopoly conceived under such a law would tend in practice to become unlimited.

Finally, as under the union the deposit of copies of foreign works would no longer be required in this country in connection with copyright protection, the future collection of these works at the Library of Congress would be curtailed and the American public denied the benefit of official copies for reference there during the period of the monopoly and for purposes of use and exploitation of the work when this period expires.

In the theory of our law the consideration for the grant of limited monopoly is that the public should have the free use of the author's work upon the expiration of the period of protection, and it is clear that this consideration will be withheld, or at least its purpose will be impaired, if foreign works are to be granted protection in the United States but no public record made thereof and no requirement exacted that the work should be disclosed through publication here and that copies circulated here should bear the customary notice of copyright, including the year from which the term of monopoly runs. Copyright on such a basis would not tend to carry out the underlying object expressed in the Constitution, 'to promote the progress of science and useful arts" nor would it mean the securing of protection "for limited times" only, for the copyrighted work, being in the nature of a secret monopoly, would tend to secure for itself an indefinite term of protection extending perhaps far beyond the period prescribed by law. Such a condition of the law, favoring the monopolist at the expense of the public, would be repugnant to the basic principles of our Government.

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The radical character of the proposed legislation is indeed such as might call in question its constitutionality. This is a question, however, which lies beyond the scope of the present memorandum.

One further feature of the proposed legislation must be noted as particularly menacing to the public interest. Instead of limiting the effect of the new law to works produced in foreign countries after the date of our accession to the Union, the bill proposes that upon that accession copyright shall at once extend in this country to all works in which foreign copyright subsists at such date.

A work of foreign origin can now secure copyright in the United States, if otherwise entitled thereto, only by first or simultaneous publication, or the equivalent of simultaneous publication, in this country. Our courts and those of Great Britain have consistently held that where a work is first published abroad it is thereby rendered publici juris and available to the public in all countries where simultaneous publication or its equivalent has been omitted and any subsequent publication in one of those other countries will not restore the author's rights which have been lost to the public there.' This is undoubtedly true under our copyright act of 1909, the word "publication" in the clause in section 9 providing-" that any person entitled thereto by this act may secure copyright for his work by publication thereof with the notice of copyright required by this act "-clearly meaning publication in this country and not abroad."

Under our existing copyright law, therefore, every copyrightable work which has been first published in any foreign country and not simultaneously published in the United States has fallen into the public domain and become available for use and exploitation by the American public. The advocates of our accession to the Union now propose that the American public be deprived of its rights in such works and that copyright protection be automatically conferred at this late date on the vast number of such works for the benefit of the foreign authors and composers and their assignees. The great wealth of foreign material still untouched by American hands is to be lifted out of the public domain and given over to monopolistic ownership.

Among the authorities so holding the following may be quoted: Universal Film v. Copperman, 212 Fed. 301; Savage v. Hoffman, 159 Fed. 584; Daly v. Walrath, 40 N. Y. App. Div. 220; Bouccicault v. Wood, 2 Biss. (Ill.) 34; Clementi v. Walker, 2 Barn. & Cr. 861; Guichard v. Mori, 9 L. J. Ch. O. S. 227; Jeffreys v. Boosey, 4 H. L. C. 852: Bouccicault v. Delafield, 1 Hem. & M. 597; Bouccicault v. Chatterton, 5 Ch. D. 267; Page v. Townsend, 5 Sim. 395.

See discussion of this point in Weil, pp. 270-286.

This was the very thing which our Congress, in its revision of the copyright law in the act of 1909, sought to guard against when in section 7 thereof they stipulated:

"That no copyright shall subsist in the original text of any work which is in the public domain, or in any work which was published in this country or any foreign country prior to the going into effect of this act and has not been already copyrighted in the United States

* *

The present Congress, however, is asked to reverse this policy and to advance the interests of the foreign authors at the cost of the American public and to increase the drastic effect of the proposed legislation by making it retroactive as to all foreign works uncopyrighted here which have not actually been made the subject of use by American citizens.

The objections to the enactment into law of the proposed bill are thus seen to rest on fundamental grounds. The advantages which membership in the union offers to American citizens are nebulous. By the reciprocal copyright relations already established with other nations under our existing law a just and wide protection to American authors is afforded in foreign countries, and nothing vital to adequate protection would be gained by our adherence to the union.

Advocates of adherence to the union have beclouded the issue with argument directed to the agreeable theme of world-wide uniformity in the grant of international copyright uniting the authors of the world in a common fraternity of privilege. Such argument when applied to America is beside the question. By section 8 of the act of 1909, as formerly by section 13 of the copyright act of 1891, the President at any time when investigation discloses that the just demands of reciprocity have been complied with by any foreign country with whom no copyright relations then exist, may proclaim that citizens of that country are entitled to all the privileges of American law, and such foreigners may therefore, by complying with the practical requirements of publication with notice of copyright, of registration, and of deposit of copies, place themselves on a parity with American authors. What more can foreigners justly ask of this country?

The extension of the right to copyright in this country to citizens of foreign countries not now enjoying the same, while not objectionable in principle, does not demand or warrant the extreme means proposed-involving incalculable loss and hardship to the American public and the advancement of foreigners to a more favorable copyright status than that of our own citizens but should proceed in accordance with our own existing law and established policy.

TRANSFER OF COPYRIGHT IN LABELS AND PRINTS FROM THE PATENT OFFICE TO THE COPYRIGHT OFFICE

Hon. WILLIAM I. SIROVICH,

Chairman Committee on Patents,

WASHINGTON, D. C., February 15, 1932.

House Office Building, City.

SIR: I attended the hearing on copyrights this morning with the idea of bringing up the matter of transfer of copyright in labels and advertisements from the Patent Office to the Copyright Office, but found that this particular session was being devoted to the radio-copyright problem and did not wish to intrude.

The patent, trade-mark, and copyright law of 1874 contained a proviso that "no prints or labels designed to be used for other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office."

When the new copyright law was enacted in 1909, no mention was made of these prints and labels, but all copyrights were entrusted to the register of copyrights. It was assumed that the registration of prints and labels would thenceforth be handled in the Copyright Office and the Commissioner of Patents ceased to perform this function. An administrative opinion was secured, however, and this opinion held that the Patent Office should continue to perform this function.

Therefore, although Congress probably intended in 1909 to have these copyrights registered with all others, in the Copyright Office, and although the registration of them in the Patent Office gives rise to a very general false impression that such registration affords trade-mark protection, which it does not, the will of Congress is frustrated by an administrative opinion and these particular copyrights remain in the Patent Office to cause continual confusion as to their effect and meaning, and where they are handled most awkwardly as compared to the registration of copyrights in the Copyright Office. Moreover, the Commissioner of Patents is already sufficiently burdened with patents and trade-marks and should not be burdened with copyright functions that properly belong in the Copyright Office, where there are many officers and employees trained to deal with copyright matters.

The courts have frequently criticized the registration of prints and labels in the Patent Office, but because the function has been in that office for so long a time, they have, in most opinions, concluded that Congress and not the courts should effect the transfer.

As showing the absurdity of these registrations in the Patent Office, it may be cited that an unbound advertisement is registrable in the Patent Office, but, if it is bound, it must be registered in the Copyright Office.

I will appreciate it if you will embody this letter in the record of the copyright hearings and if, in framing copyright legislation, you will include a proviso transferring the registration of prints and labels from the Commissioner of patents to the Register of Copyrights. Both the Reigster of Copyrights and the Commissioner of Patents have stated to me that they have no objection to such transfer. If desired, I am prepared to adduce evidence of the confusion that results from the present arrangement, but I assume this is unnecessary and that the present statement will suffice. Respectfully,