INTERNATIONAL COPYRIGHT UNION

MONDAY, MAY 28, 1934

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON FOREIGN RELATIONS, Washington, D.C.

The subcommittee met, pursuant to call, at 10 a.m., in the committee room, Capitol, Senator F. Ryan Duffy presiding. Present: Senators Duffy (chairman), and Van Nuys.

The subcommittee had under consideration the following bill:

[S. 1928, 73d Cong., 1st sess.]

A BILL To enable the United States to enter the International Copyright Union

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That copyright throughout the United States and its dependencies shall subsist in the work of alien authors, not domiciled in the United States, by virtue of the adherence of the United States to the Convention of Berne for the Protection of Literary and Artistic Works of September 9, 1886, as revised at Rome on June 2, 1928.

SEC. 2. From and after the date upon which the adherence of the United States to the said convention of 1928 becomes effective, copyright protection shall be accorded without compliance with any conditions or formalities whatever for all works by such alien authors who are nationals of any country which is a member of the International Copyright Union; as well as for any work which may be or has been first published in a country which is a member of the said union: Provided, That as to copyright in works not previously copyrighted in the United States, no right or remedy given pursuant to this Act shall prejudice lawful acts done or rights in or in connection with copies lawfully made or the continuance of business undertakings or enterprises lawfully undertaken within the United States or any of its dependencies prior to the date on which the adherence of the United States to the said convention of 1928 goes into force; and the author or other owner of such copyright or person claiming under him shall not be entitled to bring action against any person who has prior to such date taken any action in connection with the exploitation, production, reproduction, circulation, or performance (in a manner which at the time was not unlawful) of any such work whereby he has incurred any substantial expenditure or liability.

SEC. 3. Copyright is hereby granted and secured by this Act to all authors entitled thereto from and after the creation of their work, whether published or unpublished, including works of architecture and choreographic works and pantomimes, and the duration and termination of such copyright shall be governed by the provisions of Sections 23 and 24 of the Act of March 4, 1909 (U.S.C., title 17): Provided, That the duration of copyright in the United States shall not in the case of the work of any alien author extend beyond the date upon which such work has fallen into the public domain in the country of its origin as defined in said convention of 1928.

SEC. 4. The rights granted in Section 1 of the said Act of 1909 (U.S.C., title 17) shall include the exclusive right of the author to communicate his work for profit to the public by any system of broadcasting; and the author of any copyrighted work, even after the assignment of the copyright in such work, shall at all times have the right to claim the authorship of his work, and the right to oppose every distortion, mutilation, or other modification of the said work which might be prejudicial to his honor or to his reputation, as well as the right to restrain the publication and/or the performance of the mutilated work.

SEC. 5. The Supreme Court of the United States shall prescribe such additional or modified rules and regulations as may be necessary for practice and procedure

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in any action, suit, or proceeding instituted for infringement under the provisions of this Act.

SEC. 6. This Act shall take effect from the date of its passage.

Senator DUFFY. A subcommittee consisting of Senator Van Nuys, Senator Fess and myself has been appointed further to consider the matter of the convention with reference to the proposed adherence by the United States to the international copyright treaty, and, at the same time, to consider the so-called "Cutting bill," Senate bill 1928.

It has been determined that it would be rather difficult to separate the hearing on the proposed adherence and the hearing on the bill, so they will be considered together. The subcommittee has decided upon the rule that one of the three Senators will constitute a quorum to continue the taking of testimony. Senators are so very busy that it will be impossible for all the members of the subcommittee to be present at all times during the hearing.

On March 28 a hearing was held before a number of the members of the Committee on Foreign Relations, largely given over to those who might be termed the proponents of adherence. However, Mr. Flynn, who was opposed, also was heard at that time, and considering the full amount of the testimony, at least as far as length was concerned, it was very evenly divided. Therefore we have decided that today those who are favorable to the adherence of the United States to the convention, and favorable to the enactment of the proposed enabling legislation, will be heard. I recognize the fact that it is difficult to draw a clear line of distinction. There might be some who are in favor of one and think that the enabling legislation should not be passed at this time, or that there might be some objection to portions of the proposed bill; but, in a general way, those who are favorable to the idea will be heard today, and those who are opposed will be heard tomorrow.

We must necessarily have the statements very limited because of the shortness of the time. Dr. McClure, who has appeared here and represented the State Department, I shall ask to parcel out the time, so to speak, and we will have to try and conclude at 12 o'clock today, as far as this side of the question is concerned.

In order to shorten the hearing, the testimony that was taken on March 28 before the full committee, which has been transcribed, will be considered a part of this hearing, so that there need be no unnecessary duplication of the statements made then, at least by the same parties.

I will ask Dr. McClure whether he has succeded in arranging the apportioning of the time.

STATEMENT OF WALLACE MCCLURE, ASSISTANT CHIEF, TREATY DIVISION, DEPARTMENT OF STATE

Mr. McCLURE. Mr. Chairman, I have spoken to those here, as far as I could, and have apportioned out about an hour of the time. There are probably others whom I have overlooked, who might like to be heard, and they can speak to me at any time about having their names put on the list.

Senator DUFFY. I suggest that you arrange the order, and then if there is any objection, or if anyone thinks he is not having full opportunity to be heard considering the limitation of time, he can just speak up, and we will endeavor to give everyone a chance.

What statement do you desire to start with?

Mr. McCLURE. Would it be agreeable for me to make a brief statement on behalf of the Department of State?

Senator DUFFY. You may proceed.

Mr. MCCLURE. The Department of State naturally has an interest in this matter, primarily because it concerns a treaty. The business of the Department of State, of course, is to negotiate treaties. Another function of the Department of State is to protect American interests in other countries, and the reason why the Department of State has recommended this treaty is because it believes that, through the treaty, it can better protect American interests, so far as copyright is concerned, in other countries, than through any other available instrumentality.

I myself have appeared before the Committee on Foreign Relations and other committees which have considered this matter on a number of occasions. I do not believe there is anything for me to add to what I have said on those other occasions with respect to the treaty and with respect to the desirability, from the point of view of the United States, of entering into this treaty, and thus equipping the Government with the best available instrumentality for the protection of American rights in other countries.

I have before me a set of the hearings which have taken place in regard to this bill. You can see that they are voluminous. I have also a set of the bills which have been introduced with respect to the reform of the copyright law of this country. You can see that they also are voluminous. They have been introduced and reintroduced, and there has not as yet, after the passage of many years, been any concrete accomplishment, and if I might this morning I would like to speak primarily in behalf of a concrete accomplishment, the beginning of getting something actually done.

I do not believe that there is anything more that can be said from the point of view of hearings. I myself have nothing original to offer, and I doubt whether the other witnesses who have filled the voluminous pages of these hearings can add to the statements which they have made in behalf of the interests which they represent.

I do believe, however, that there is a possible way out of the difficulty we are in, and I would like to suggest some method of procedure which we might follow.

First of all, I should like to suggest that we enter into this treaty. The great majority of the witnesses who have appeared in behalf of the various interested parties of the country, in connection with the copyright hearing, have been in favor of entering into the treaty. The more difficult, and the more numerous, of the objections, have been raised, not to the treaty, but to the statute law. Therefore I would suggest that we take the treaty and make a concrete accomplishment of it, that this Government enter into the treaty. It is not necessary that entering into the treaty occur at the present moment. Should the Senate be willing, at the present session, to give its advice and consent to adherence by the President to this treaty, it can fix whatever date it desires to fix for entering into the treaty. It could, for instance, fix the first of April or the first of March of next year, well after the beginning of the session of Congress which will start next January. If it does that, it can have the assurance

that, even if there is no legislation, the treaty itself will, in desirable ways, alter the copyright law of this country.

In the testimony which I gave before the full committee some weeks ago the question came up as to whether this is a treaty which is self-executing. In that connection I would like to refer to an opinion of Attorney General Cushing delivered some 80 years ago in regard to a copyright treaty, holding definitely that it is self executing; and I would like to suggest that, should anything happen in respect of the legislation desired between now and the time the treaty goes into effect, there would be nothing that would be of undue difficulty. There might be some little confusion, but there would be no undue difficulty encountered, because the treaty would simply supersede the statute, as far as the treaty provisions themselves go, and we would have the great advantage of having a real, concrete achievement after the years and years of testimony and decades and decades of agitation which have gone by since this movement started. We would have, moreover and this I think is the essential thing— a definite spur to all of us to get together on legislation. I think that it would not be too grave a charge if I should suggest that there has been some drift, some dilatoriness, some failure to make complete effort to get together on the precise procedure which might come nearest being what everyone would be satisfied with, and if you will pardon me, I am going to suggest, further, that through some means or other, if it should be possible to enter into the treaty now, and regardless, indeed, of whether it is possible to approve the treaty now, this subcommittee consider itself in session until an agreement shall be reached.

That, if I seem startling, is a mere suggestion. I would be very presumptuous, in any event, to suggest that the committee should be working during the summer months. but I would like to suggest that if it is impossible to do everything desired now, perhaps the subcommittee might care to consider itself in session, and to get for itself such experts as might be necessary from the executive parts of the Government, from the State Department, from the Department of Commerce, from the Library of Congress, and instruct those people to go through the testimony already given in order to find out what is desired; to study the bills which have already been introduced, and to find out what is the best bill-and some of these are excellent billsand to report to you, if that should seem desirable, somewhere around the first of December, a bill which seems to embody a proposition which comes nearest what everyone wants, in order that it might be prepared and studied by the subcommittee, and be ready for introduction when the new Congress meets.

If the treaty is approved, and we know it is to go into force, say, the first of April, we will perhaps work harder to get the legislation just as it ought to be before the treaty goes into force. If the treaty goes into force without it, there will not be any harm done, but we will have the spur to increase our efforts to get together.

I think that if any work is done during the course of the coming summer, there could be consultations with interested parties to fill out anything which may not have been put into print. I believe that the chances would be very good for a bill that is the best obtainable by the time the committee would want to get together again, and by the time

Congress would convene. So I should like to leave that proposition with the subcommittee, if I may.

There are one or two other minor matters I should like to suggest. Senator DUFFY. If I may interrupt, one of the parties interested has sent up a note asking if he could ask you a question. I recognize that we cannot throw this matter open to a sort of cross examination and hope to get anywhere, but after a witness shall have concluded, if there is a question or two, someone desires to ask, it may be asked, but we just cannot get into an argument back and forth on the matter. So you may continue, Dr. McClure, and you may answer the questions when you shall have finished.

Mr. McCLURE. Very well. You yourself mentioned, Mr. Chairman, at the beginning of the hearing, the fact that Mr. Flynn, who represented, I believe, the American Federation of Labor, had spoken at the other hearing somewhat in opposition to the pending bill. Since that time the Department of State has conferred with the Department of Labor with respect to Mr. Flynn's objections. The Department of Labor believes that possibly as many as 500 men may be concerned in the manufacture of books which are in English, and by non-American authors, and which, under the terms of the copyright law as it now exists, must be manufactured in this country in order to enjoy copyright.

Mr. Flynn, though he admitted that the labor interests had been perfectly satisfied to have the so-called "manufacture" clause repealed, feared that at the present time, when there is so much unemployment, that might have a bad effect. I did not understand that his objection was very pronounced, or that he cared to press it to the utmost limit, but the Department of Labor, looking into the matter, found that not over five to six hundred people would be affected, and in that connection I have just received from the Department of Commerce the following figures for the year 1931, which are the latest figures they have.

There were in 1931 a total of 254,461 wage earners in the printing and publishing trades, of whom 134,302 were in the book printing and publishing trades.

For the year 1929 the corresponding figures were, for the printing and publishing trades as a whole, 289,119, and in the book publishing and printing trades alone, 150,649.

I cite these figures to show what an infinitesimal proportion of the total number would be affected, and to suggest that, in view of these very large totals, the effect upon the picture would probably not be in any sense one of difficulty.

I wanted also to place before you, if I might, a copy of the opinion of the Attorney General to which I alluded, and of the convention with Great Britain which it undertakes to deal with.

I would also like to leave with you, if it is the desire of the subcommittee, a list of the countries which are parties to the unionthere are some 42 countries, apart from a large number of colonies, dependencies of one kind or another which are parties to this treaty, and consequently are countries within which the protection to American interests would take place, if the subcommittee should see fit to recommend the adherence of the United States to the treaty, and the Senate should follow their recommendation.

Senator VAN NUYS. Is that a Government report?