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thors was cut off. The book industry continued to expand at an even greater rate than before. The following statistics from the U.S. Census provide a rough measure of growth, the only one available:
Value of book and job printing
$121, 798, 000 1889_ 93, 909, 000 1904.
182, 612, 000 Finally and most importantly, with unpaid foreign competition greatly reduced, American professional writers, playwrights and composers of popular music began to blossom, and a trend was started which was ultimately to make American creative works the most vigorous and widely disseminated in the world.
MAJOR MODIFICATIONS IN THE MANUFACTURING CLAUSE
The subsequent history of the manufacturing clause is—with one exceptionone of a series of relaxations; so that the present provision is only a shadow of the original. The one exception which strengthened the clause was in 1909 when periodicals were made subject to the clause and the additional requirement of binding in the United States was added. The principal relaxations up to the present time have been :
1909: Elimination of the manufacturing requirement for books in languages other than English.
1919: Granting of 60 days after publication for copyright registration of books not first manufactured in the United States, and 4 months' temporary or ad interim copyright, in which manufacture in the United States could be completed.
1949: Granting of 6 months after publication for copyright registration of books not first manufactured in the United States and a 5-year ad interim copyright to permit remanufacture in the United States. In addition 1,500 copies of the foreign edition could be imported during the 5-year ad interim period.
1954: Elimination of the manufacturing requirement and import restrictions for books first published in a country adhering to the Universal Copyright Convention or for books written by a national of a country adhering to the UCC. However, because the elimination of the manufacturing requirement did not apply to U.S. citizens or domiciliaries, permission was granted to American authors to take out the 5-year ad interim copyright on their
works first published abroad and to import up to 1,500 copies of those books. The elimination of the manufacturing clause for nationals of countries adhering to the UCC was a requirement for the acceptance of the United States into that multilateral convention. We had by then become the world's leading producer of all types of creative work-literature, plays, and music-with exports far exceeding our imports. It was obviously in our interest to protect our copyrights abroad; and Congress was convinced that the concession on the manufacturing clause would not be harmful to any American interest. As noted earlier, history has demonstrated the truth of this conviction.
PRESENT STATUS OF THE CLAUSE
At the present time the manufacturing clause applies only to works in English in whole or in part by American authors or by citizens of those few countries (like Australia) that have not joined the Universal Copyright Convention. Books by American authors must be wholly manufactured in the United States to get a full-term copyright. What this means depends on whether the work is produced by letterpress or by lithography.
A letterpress book is printed from raised type, either the original type or a plate made from it. An offset lithographed work or book is printed from a flat surface so treated that ink will not adhere to parts of the surface. Offset lithograph plates are almost always made from films, which in turn are made by photographing the material to be printed. The requirement of the manufacturing clause that the actual printing and binding be done in the United States applies to all books falling under the clause regardless of the method of printing. In the case of works printed by letterpress the law further specifically requires that the work be printed from type set in the United States or from plates made in the United States from type set here. If the work is printed by lithography the specific requirement of typesetting in the United States is omitted, and the requirement instead is only that the copies must be produced “by a process wholly performed in the United States."
52-380— 66-pt. 3-14
Since it is generally understood that the lithographic process begins with the act of photographing the material to be reproduced, whatever it may be, it has been considered that a work complies with the manufacturing clause if the lithographic process from first film to bound book is wholly performed in the United States, though the material lithographed may be a so-called reproduction proof made from type set abroad. That is, one clean set of proof sheets may be made abroad and sent to the United States. It may then be photographed, made into plates, printed and bound here.
This practice is usually advantageous only for scientific, technical, and scholarly books in small editions, for which the presence of foreign language phrases, mathematical equations, chemical formulas, etc., makes it impractical to set type by the familiar and relatively inexpensive linotype method, and re quires typesetting by hand or by monotype machine. Though such books make up a trivial part of the dollar volume of American book production-and an invisibly small part of American printing generally—they are essential to American progress in science, technology, and scholarship.
A very few hundred books by American authors, certainly less than 3 percent of our annual production of new and revised book titles, are produced annually from reproduction proofs. This has in no way injured American book manufacturing or printing unions. On the contrary if the problem of composition could not have been met in this way, most of these books could not have been published. Not only would American science and technology have been held back if that were the case, but American book manufacturing companies and printing union members would have lost all the work of platemaking, printing and binding for these works, which is, of course, a large and more profitable part of the job than the typesetting.
All these books so produced have been registered for copyright on application to the Copyright Office. The validity of the copyrights so obtained has nerer been questioned in the courts and the Deputy Register of Copyrights, in his testimony before this committee, expressed the belief that the courts would be likely to hold such copyrights valid. We certainly hold that such a use of imported reproduction proofs wholly complies with the law. In his report on H.R. 4347 to this committee, however, the Register of Copyrights has stated that the language of the present statute is unclear and that registrations of works produced as described above had been made on the "basis of doubt." This ambiguity in the present law is extremely undesirable and its perpetuation would be intolerable.
It involves the rights of thousands of American authors and the investment by American publishers over the years of millions of dollars in scientific, technical, medical, and scholarly publications. Without the ability to have composition of these specialized books done where it can be most effectively done, the publication of hundreds of such works would have been impossible in the present state of technology. This would have been a loss to American printers and binders as well as doing grave damage to American scientific, technical and scholarly progress.
PROPOSAL OF THE REGISTER OF COPYRIGUTS
In his original 1961 report to the Congress the Register of Copyrights recommended (p. 124) the completo repeal of the manufacturing clause in the following language:
“(a) The requirement of manufacture in the United States as a condition of copyright (sec. 16) and the related provisions dealing with affidavits (secs. 17 and 18) and ad interim copyright (secs. 22 and 23) should iminated.
“(b) The prohibition against the importation of copyrighted English-language books manufactured abroad (sec. 107) and the provision for importing up to 1,500 copies under ad interim copyright (sec. 16) should be eliminated. If Congress finds that an import limitation on English-language books is necessary for the protection of the U.S. printing industry, the limitation need not be confined to copyrighted books, and it should be provided for in legislation other than the copyright statute."
Subsequently the Register in the actual bill introduced in 1964 (H.R. 11947 and S. 3008) proposed a further modification rather than a repeal of the manu
facturing clause. Again in H.R. 4347 and S. 1006, the current bills introduced on February 4, 1965, the Register has proposed still another modification rather than repeal. The Register makes it clear in his report on H.R. 4347 that he has not changed his mind about the desirability of his 1961 recommendation of complete repeal, but has been concerned about the opposition to repeal, on economic grounds, which may be expressed by certain groups.
The Register is now proposing to make the following further principal modifications in the manufacturing clause :
(1) Eliminate the requirement of U.S. manufacture for American authors (or anyone else) in order to obtain full term U.S. copyright.
(2) Substitute a requirement of U.S. manufacture (or importation of up to 3,500 copies) in order to bring suit for infringement of copyright where the infringing use of the material is in book form.
(3) Permit the importation or distribution in the United States of 3,500 copies of a work first manufactured abroad without limitation of time.
(4) Exempt from the manufacturing clause books of joint foreign and American authorship. Though the various modifications proposed by the Register in H.R. 4347 are desirable as far as they go, they do not reach the heart of the issue. The basically indefensible principle remains : that an author's right to the creation of his own mind is made dependent on the circumstances of the manufacture of one physical form in which his work is embodied. And the central practical problem of the whole manufacturing clause remains. H.R. 4347 embodies the precise language of the present law in defining what constitutes “manufacture in the United States." The Register's report confesses that he is not certain what this language means in the present law and says of the language in H.R. 4347 only that "it is intended to mean here whatever it means there." I assume that this committee will not wish to recommend to the Congress that it enact language whose meaning cannot be determined, and that the committee will wish to resolve this issue. As I shall endeavor to point out, it can do so easily, clearly, and completely by simply eliminating the manufacturing clause and the related import restrictions contained in chapter 6 of H.R. 4347-and it can do so without injuring the economic interests of American book manufacturing and indeed without significant change in the present patterns of printing and publishing.
THE BENEFITS OF COMPLETE REPEAL
The benefits of repeal of the manufacturing clause and related import restrictions as compared with the further modifications which the Register of Copyrights bas suggested in H.R. 4347 may be listed under the following eight major headings :
(1) The greatest single advantage would be the resolution of whatever doubt there may be about copyright registrations on books printed in this country by the lithographic process, using reproduction proofs of type set abroad. The importance of this practice for the publication of small-edition, specialized, technical, scientific, and scholarly books by American authors has already been discussed in some detail and will not be repeated here.
(2) It would permit manufacture abroad, without sacrifice of copyright, of co-editions with foreign publishers, using an American author for the English language text. When several European publishers and an American publisher join in the production of a book, frequently a heavily-illustrated art book, each national edition will have the same illustrations but the text will be in different languages. Production of these books is only economically feasible on a coedition basis, and the work is usually done in Europe because most of the participating publishers are located there. If the author of the English-language text of the American edition is an American citizen the U.S. copyright on the American edition must be sacrificed. This is one of the numerous situations in which the manufacturing clause cannot force the production of an edition in this country; it can only result in the loss of the author's copyright here.
(3) It will reduce friction with publishers and authors in other countries, which always carries with it the possibility of retaliation in other ways such as tariffs and exchange restrictions, or even other manufacturing clauses. No other country has yet adopted a manufacturing clause such as ours but it has been threatened, for example, in the Philippines during the postwar period. As we are the world's leading book exporting nation the incorporation of a manufacturing clause in the laws of other countries would severely damage our international trade in books. Fortunately the manufacturing clause cannot be applied against American authors in any of the 50 countries which are now members of the Universal Copyright Convention, but there are still important book importing countries which are not yet members of the Universal Copyright Convention. As a book exporting country it is always in our economic as well as political interest to support the freest possible international exchange of scientific, educational, and cultural materials.
(4) American authors would be free to have their works published or printed abroad without sacrificing their copyright protection in a number of special circumstances. As will be demonstrated later, American authors would not very often wish to have their books printed or published abroad because it is ordinarily much simpler and more advantageous to have the work done in their own country. This is the universal situation despite the fact that authors in other countries are not restricted by a manufacturing requirement. But there are circumstances in which it would be a considerable convenience to deal with a local publisher abroad, as in the case of the increasing number of American scholars who may be temporarily stationed abroad on Fulbright fellowships and similar arrangements. There are also the rare cases in which no American publisher is interested in an author's book but a foreign publisher may be.
(5) It would permit the selection of American authors as contributors to important scientific, technical, and professional works published by foreign publishing firms or international agencies. At the present time outstanding American scientists and other professional people are usually excluded from consideration when an author for a book on their specialty is being sought by a foreign publisher or an international agency having its headquarters outside the United States. No matter how outstanding the American expert may be, he will be excluded from consideration because the manufacturing clause provision would result in losing copyright of the book in the United States if it were manufactured abroad. This is a result which not only damages the prospective author but hinders the progress of science and scholarship and the international intellectual standing of the United States.
(6) Foreign authors domiciled in the United States, even temporarily, would not lose their copyright protection in this country if their works in English were printed abroad because of being published by the author's regular publisher. The protection the Universal Copyright Convention and our law give to the works of authors who are citizens of Universal Copyright Convention countries does not apply if the foreign authors are domiciled in the United States at the time their foreign-manufactured book is imported.
(7) It would reduce the present special frictions with Canada over the manufacturing clause. Canada has a special relationship to the United States in the field of book publishing because of its nearness and its use of the English language. It is by far our largest export market for books. Canadian publishers feel particularly aggrieved because books by Canadian authors are very frequently published in the United States and these books exported to Canada without sacrifice of copyright. However American authors cannot be first published in Canada without losing their copyright protection in this country. The Canadian publishers are not so much interested in books by a single American author, but rather in being free to seek American contributors to joint works which cannot now be done without throwing the whole book into the public domain in the United States. It would be possible, under the terms of the Universal Copyright Convention, which outlaws any manufacturing clause for foreign authors, for Canada to retaliate by adopting such a clause with respect to her own authors, as we now do, and thus effectively discourage the first publication of Canadian authors in this country.
(8) It would eliminate what the authors of the Copyright Office study of the manufacturing clause, dated February 1963, ha called "an intricate tangle of general requirements, exceptions, special procedures for proof of compliance, special provisions for 'ad interim' copyright, and import prohibitions and exceptions. These provisions abound in abstruse and ambiguous terms, making enforcement extremely difficult." These requirements place a heavy and expensive administrative burden on the Copyright Office and the Customs Service, as well as on publishers and importers of books. They would all be neatly excised by complete repeal of the manufacturing clause.
ECONOMICS OF THE MANUFACTURING CLAUSE The only argument ever advanced for retaining what remains of the manufacturing clause is based on its supposed economic effects on the U.S. bookmanufacturing industry. Fears are expressed that if the clause is repealed books will be manufactured abroad and imported into this country because of lower wages in foreign countries. This same argument was presented in the 1954 congressional hearings on the Universal Copyright Convention with respect to removing the manufacturing requirement on books in English by foreign authors. Severe economic damage to our printing industry was predicted if works by British authors could be imported and did not have to be remanufactured in the United States to get U.S. copyright protection. This prediction proved to be utterly unfounded. Works by British authors continue to be remanufactured in this country when the prospective sale makes a U.S. edition economic, and there has been no vast switch to the importing of British editions.
This is conclusively demonstrated in table 1 below which compares the importation of foreign editions of general books with the domestic remanufacture of works by British and other foreign authors before and after the effective date of the U.S. (1955) and the British accession to the Universal Copyright Convention (1957). General books were selected as a test case and special questionnaires were sent out to gather the information, because in no other category of books was the remanufacture of copyrighted English-language editions of any significance in the early 1950's. The table also gives for comparative purposes the number of comparable titles by American authors and the average size of editions for the years 1953, 1958, and 1964.
As the table shows, the number of British and other editions imported did increase, but so did the number of foreign titles remanufactured here and the number of titles by American authors. The percentage of total copies represented by imported editions increased from 1.8 of the total in the sample in 1953 to 4.8 in 1964. The increase over 1953 of about 142 million copies of imported books by 1964 was matched by about the same increase in the number of copies of foreign works remanufactured in this country. If the predictions of the opponents of the Universal Copyright Convention had been borne out, the number of foreign titles remanufactured in the United States should have decreased drastically.
The figures on the average size of the importations and of the domestically manufactured editions illustrate the real reason why importation took place in some cases and domestic manufacture in others, and this had little or nothing to do with the manufacturing clause. As I pointed out in my 1954 analysis, discussing the 1953 figures :
“The books in English by foreign authors manufactured in the United States were produced in editions averaging 7,400 copies. This is an average size of edition which is well above the figure at which it is more economical to manufacture an American edition rather than to try to import. The imported editions, it will be noted, averaged only about 1,500 copies *. American publishers have found that on editions of about 2,500 copies or more it is more practical to print and bind books in this country. This is done even where copyright is not involved at all as in the case of the Bible and the classics
Thus it can be stated with virtual certainty that of the 2 percent or so of annual American book production which consists of the works of foreign authors in the English language now manufactured here only a very small part could conceivably be supplied by imports if these works are exempted from the requirement of U.S. manufacture to secure full U.S. copyright."
I have quoted from my testimony and referred to the figures for 1953, which are the same 1953 figures which appear in table 1. What had happened by 1958 and 1964? The average size of the importations of British editions had increased somewhat by 1964 to about 1,900 copies, but so had the size of the average edition of British works remanufactured in this country. The ratio of edition sizes remained about the same as it had in 1953, with the American remanufactured editions being four to five times as large as the imports. As it had been in 1953, it continued to be more economic to remanufacture in the United States titles with a sizable potential sale and to import the titles with a small sale.
Thus, as predicted, it was not the existence of the manufacturing clause which was responsible for the remanufacture of 395 British titles in the United States