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with the deposit requirements. The provisions of this bill first direct the copyright proprietor to deposit his copies. If for any reason he does not so deposit, then he is given ample time to deposit after he receives a written demand so to do. Not until he has intentionally declined to deposit in compliance with this written demand is his copyright forfeited.
For the protection of the public itself it is further provided that-
No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this sertion with respect to the deposit of copies of such work shall have been complied with.
Under existing law notice of copyright must be printed in every copy of every edition of a book. If any copy of any edition published by authority of the proprietor of the copyright by accident or mistake gets out without the copyright notice, the whole copyrirht is lost. More copyrights have been lost under this drastic provision of the law than in any other way. Your committee believe that an unintentional failure to comply with this requirement in the case of a single book ought not to have attached to it the penalty involved in the forfeiture of the copyright, and this bill provides that,
Where the copyright proprietor has sought to comply with the provisions of sections 10 and 15 of this act with resperit to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall prevent the recovery of damages against an innocent infringer mined thereby, but shall not invalidate the copyright or prevent recovery for infringement against any person who, after actual notice of the copyright, berzins an undertaking to infringe it, but in a suit for infringement against such infringer no permanent injunction shall be bad unless the copyright proprietor shall reimburse to the innocent infringer his reasonable outlay innocently incurred.
There are only two provisions in this bill which in express terms render a copyright void. One has already been mentioned—the failure to comply with the deposit within a certain time upon a written demand; the other is the willful making of a false affidavit regarding what is known as the manufacturing clause. The bill as introduced provided that the copyright secured included the sole and exclusive right of making any copy of any work or any part thereof. It was urged that the words "any part thereof” would prohibit the use of any part of said work by another and would overturn the doctrine, now well established, of fair and reasonable use. It was said that if a writer should make any extract from any copyrighted book under that provision it would be an infringement of the copyright, and the court would have no power to refuse an injunction. That provision no longer appears in the bill.
It further provided that the exclusive right should cover the right,
To sell, distribute, exhibit, or let for hire, or offer or keep for sale, distribution, exhibition, or hire any copy of such work.
It was insisted that this paragraph would prevent the purchaser of a copyrighted book from reselling it or lending it or giving it away or the letting for hire of any such book, thus putting an end to circulating libraries. Your committee believed that this section was susceptible of that construction and that under it a man might have only a qualified title in the copyrighted books in his library. This entire paragraph was eliminated, and in this bill the phraseology of the existing law has been substantially reproduced. The existing law
gives the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending.” We have added nothing to that, but eliminated a few words which seemed to serve no useful purpose. The phraseology regarding this matter in the first act of Congress ever passed—that of 1790—was: The sole right and liberty of printing, reprinting, publishing, and vending.
Paragraph c secures the copyright protection to lectures, sermons, or addresses, etc., prepared for oral delivery.
Paragraph b in the present bill contains certain new features, but is consistent with existing law.
Paragraph d reenacts existing law.
The bill as introduced had the following provision, it being paraparagraph g of section 1:
To make, sell, distribute, or let for hire any device, contrivance, or appliance especially adapted in any manner whatsoever to reproduce to the ear the whole or any material part of any work published and copyrighteil after this aet shall have gone into effect, or by means of any such device or appliance publicly to reproduce to the ear the whole or any material part of such work.
In the redraft of the bill by its framers, to which reference has been made, paragraph g was stricken out and this particular matter was included in paragraph e of section 1 in the following words:
To perform the copyrighted work publicly for profit if it be a musical composition on which such right of public performance for profit has been reserved, as provided in section 14 of this act; and for the purpose of public performance for profit, and for the purposes set forth in subsection a hereof, to make any rearrangement or resetting of it or of the melody of it in any system of notation or any form of record in which the thought of an author may be recorded and from which it may be read or reproduced.
More time was given by the committee to the consideration of this provision than was given to any other provision in the original bill. A case involving the right to reproduce by mechanical means any copyrighted musical composition is pending before the Supreme Court of the United States, and your committee felt that further legislation regarding this matter should be postponed until we can know what construction the court will give to the existing law. Should the court sustain the contention of the plaintiff in that case, the musical composers and publishers will probably secure all they sought to obtain by the enactment of the provision before mentioned, and should the court hold the other way, Congress can then take up the question of giving further protection to musical authors, if it deem it wise to do so, in a separate bill. This was the course adopted in England last year, when the bill introduced by Mr. T. P. O'Connor, dealing solely with musical copyrights, became a law. It is but fair to say in this connection that that bill did not extend the copyright laws of England so as to cover perforated musical rolls used for playing mechanical instruments nor records used in the reproduction of sound waves. The case now before the Supreme Court, to which reference has been made, is one involving the construction of the act approved January 6, 1997, amending section 4966 of the Revised Statutes of the United States.
This act provides that if any person publicly performs or represents any dramatic or musical composition for which copyright has been obtained without the consent of the proprietor thereof, he shall be liable for damages, and if such unlawful performance or representation be willful and for profit such person shall be guilty of a misdemeanor, and upon conviction be imprisoned for a period not exceeding one year. Whether this act covers the reproduction of a musical composition by any mechanical means for the purpose of giving a public performance is a question upon which light will probably be thrown by the decision of the Supreme Court in this case.
Your committee felt that the public performance of a musical composition without first obtaining the consent of the copyright proprietor should not be prohibited in all cases, but only when the public performance is for profit. For that reason what was known as paragraph g in the original bill and the last part of paragraph e in the new draft have been eliminated. The only provision in the bill reported to the IIouse regarding the reproduction of copyrighted music by mechanical means is found in paragraph e of section 1 as it now stands. Your committee believe that if this is enacted into law it will simply prohibit the public performance for profit of copyrighted music without the consent of the proprietor by any means whatever, whether mechanical or otherwise.
Section 2 simply preserves the rights which the author may have at common law or in equity to prevent the publication or use without his consent of a work which he has not published.
Section 3 does away with any necessity of taking a copyright on the contributions of different persons included in a single publication, but it in no manner is intended to extend the duration or scope of any copyright or to make copyrightable anything which has fallen into the public domain.
Section 4 uses the word “works” as the equivalent of the constitutional word “writings," so far as such works shall be literary, artistic, musical, or dramatic. On no other works can Congress give a copyright. The word "works" is used in preference to writings in order to make the provision consistent with the construction which the courts have in a long series of cases given to the word " writings."
Section 5 refers solely to a classification made for the convenience of the Copyright Oflice and those applying for copyrights.
Section 6 permits the copyrighting of abridgments and new versions of works, or works republished with new matter, but provides that such copyright shall give no exclusive right to the use of the original works or in any way extend the copyright on such original works.
Section 7 was inserted for the reason that the Government often desires to make use in its publications of copyrighted material, with the consent of the owner of the copyright, and it has been regarded heretofore as necessary to pass a special act every time this was done, providing that such use by the Government should not be taken to give to anyone the right to use the copyrighted material found in the Government publication. It was thought best, instead of being obliged to resort every little while to a special act, to have some general legislation on this subject.
Section 8 makes no change in the existing law. The act of March 3, 1891, provided for an international agreement regarding copr. rights. Under the provisions of this act the citizen or subject of a foreign state or nation was given the right to coypright here when such foreign state or nation gave to the citizens of the United States the benefit of copyright on substantially the same basis as to its own
citizens, and it further provided that the existence of those conditions shall be determined by the President of the United States by proclamation, made from time to time as the purpose of this act may require, and on July 1, 1891, the date mentioned in this section, President Harrison issued a proclamation stating that Belgium, France, Great Britain and the British possessions, and Switzerland had passed laws giving citizens of the United States the benefit of copyright on substantially the same basis as to the citizens of those countries.
The last clause in section 8 is inserted in order to make it clear that the original text of any work which has fallen into the public domain can not be copyrighted.
Section 9 is not intended to change existing law further than to provide that a foreign author, the citizen of a foreign state which has not passed a law giving to citizens of the United States the benefit of their copyright laws, may have a copyright, provided he is residing here at the time of his first publication, or who shall first or contemporaneously with its first publication publish his work within the United States.
Section 10 has, to some extent, been already discussed. Under this section a copyright may be secured by publication and notice by the deposit of the two copies, as is now provided by law. The exception of books seeking an ad interim term will be discussed in connection with section 16.
Section 11 deals with what shall be deposited as the copies. If the work be a photograph, the proprietor does not need to file a copy of the photograph, but merely a photographic print. If it be a work of art or a plastic work, he need not file a copy of that, but simply a photograph or an identifying reproduction thereof; but if it be a photograph of a work of art or a plastic work or drawing, the original of which the proprietor thereafter desires to publish, or, to use another term, to exhibit for hire, he shall, upon such exhibition, affix to the original the notice of copyright. There can certainly be no necessity for his affixing the notice to the original so long as he does not care to so publish or exhibit. Should the proprietor at any time decide to make copies of his work, then he must file the two complete copies, as must be done in ordinary cases.
Section 12 has already been explained. Section 14 is known as the manufacturing clause. In order to afford protection to American typographers Congress some years ago enacted a law providing that in case of a book, photograph, chromo, or lithograph the two copies of the same required to be delivered to the Librarian of Congress should be printed from type set within the limits of the United States, or from plates made therefrom, or from negatives or from drawings on stone made within the limits of the United States. No penalty whatever was affixed to the failure to comply with this requirement. The applicant for a copyright simply stated that his book was so printed. This statement was not made under oath, nor did he ever indicate where the work was done. It was found that this statute afforded little protection, and it was claimed that many books were copyrighted which had not been manufactured in compliance with this provision.
On April 28, 1904, the House passed a bill which required the applicant for a copyright to make an affidavit setting forth that the two copies to be deposited had been made in compliance with the statute, and provided that any violation of the act or the making of a false affidavit as to having complied with the conditions shall be deemed a misdemeanor, punishable by fine, and that all rights under the copyright shall be forfeited. That bill was favorably reported by the Senate committee, but failed to be reached. At the hearings in December it appeared that even the enactment of that provision would not give the protection to American labor engaged in the manufacture of books which it has been the apparent purpose of Congress to give. It was found that plates which were made from type set in the United States were being used in Japan for the printing of a series of American schoolbooks, such as are now used in our public schools, and that they were being brought into this country and sold at a price not more than one-sixth of that which it would cost to produce the books in this country.
It was felt by your committee that if there was reason, as we think there was, for the requirement that the book should be printed from type set in this country, there was just as much reason for a requirement that the book should be printed and bound in this country, That protection to the men engaged in the work of setting type, making plates, printing and binding books is given by this section, which also carries the penalty provision for knowingly making a false affidavit as to compliance with these provisions.
Section 15 provides for the form of the notice. The notice now required by law, which must be very strictly followed in order to prevent forfeiture of the copyright, is as follows:
Entered according to act of ('ongress, in the year -- by A. B., in the office of the Librarian of Congress, at Washington; or, at his option the word “Cops. right," together with the year the copyright was entered, and the name of the party by whom it was taken out; thus: “ ('opyright, 18--, by A. B.”
The bill as originally introduced provided that the notice of copyright should consist of the word “ Copyright,” or of some abbreviation thereof, accompanied in every case by the name of the copyright proprietor, or, in case it was a work of art, etc., by the proprietor's initials, monogram, etc.: that in case of a book or other printed publication the notice should be on its title-page or the page immediately following. If it was a map, work or art, drawing, plastic work, photograph, or a print, notice should be upon some accessible portion of the work itself, or on the margin, back, base, or pedestal, etc. No date was required, not even the year in which the copyright was secured, in case of a book or anything else. Serious objections were made to the elimination of the date. It was said that the public would have no means of ascertaining whether the copyright had expired and that the public was entitled to that knowledge.
Your committee felt that in case of books or printed publications, including musical works, if the work be a printed literary, musical. or dramatic work, the year in which the copyright began should be stated in the notice, and we have provided for the insertion of the date in the notice in all such works. Your committee did not feel that it was necessary to have the date printed on works of art, etc. Artists have always objected to the copyright notice which they were obliged to put on the picture, because it was considered a disfigurement, and we have retained substantially the provision of the original bill regarding the notice in such cases.