dollars in investment concerned in the change of these copyright laws, and, as I said at the beginning, it is unthinkable to me that the Congress would revolutionize copyrights by any such legislation as is proposed here in about three pages of printed matter.

Thank you, Mr. Chairman.

Senator DUFFY. I will ask each person who speaks not only to give his name, but what, if any, organization he represents, together with his address.

STATEMENT OF EDWIN P. KILROE, ATTORNEY FOR THE FOX FILM CORPORATION, CHAIRMAN OF THE CORPORATE COMMITTEE OF THE HAYS ORGANIZATION, AND REPRESENTING THE MOTION-PICTURE PRODUCERS OF AMERICA

Senator DILL. Mr. Chairman, Mr. Kilroe will be the first speaker. Senator DUFFY. Will you give your full name for the record? Mr. KILROE. Edwin P. Kilroe, attorney for the Fox Film Corporation, chairman of the corporate committee of the Hays organization, and representing the Motion-Picture Producers of America.

Mr. Chairman, I foreshadowed yesterday the few objections we had in my examination of Dr. McClure. Our first objection to joining the Berne convention is the fact that we must go in without reservations, and we will probably be the only country of importance that will do so.

Under the Berne convention of 1886, as revised in Paris in 1896 and further revised in Berlin in 1908, certain reservations might have been made protecting specified rights of the nationals of the several convention countries; under article 27 of the Rome convention the countries that are now members of the convention—that is, the Berlin convention or the prior conventions can join their own convention with these reservations and still enjoy all reservations they had. We cannot do that. If we join now under the act or conventions we must do so without reservation of any kind so that we will go into this convention without equal privileges of other members. At a later point I will take up one of the important reservations we should make, if we can.

The first important point is whether or not under the present Constitution of the United States we can join the Berne convention, and that is the fact—I mean the Rome convention-as it is a fact that the Rome convention apparently provides for oral copyrights and the only right of Congress to pass copyright legislation is restricted to writings and discoveries.

Article 2 of the Rome conventions provides that

All productions in the literary, scientific, and artistic domain whatever the mode or form of expression, such as books, pamphlets, and other writings; lectures, addresses, sermons and other works of like nature.

You will notice here the expression "the mode or form of expression' which the Constitution does not give the right to copyright. As a matter of fact, that was the intention of the Rome convention to do so, because the wording of that clause was changed from the wording as it was revealed in the Berlin convention. Under the Berlin convention they were entitled to copyrights "whatever the mode or form of reproduction." The Rome convention gives copyright protection to literary and artistic work "whatever the mode or form of expression.'

The word "reproduction" was stricken out and the word "expression" inserted.

The enabling act granting oral copyright would be of doubtful validity since Congress is empowered by the Constitution to enact copyright legislation only for "writings."

It is true our courts have given a broad definition to the term "writings" and have held it includes photography, paintings, engravings, sculpturing, and other tangible media for the physical recording and expression of thought, but under the present trend of judicial thought on copyright in the United States clearly indicates that our courts would not hold that oral works are included in the term "writings as used in the Federal Constitution.

In that respect I should like to read to you a memorandum that was sent to the Rome convention by our organization in 1928 relating to this oral copyright [reading]:

At least two of the suggested propositions, if adopted, would seem to render it impossible for the United States ever to become a member of the Berne convention.

The first is the Italian suggestion that copyright exists in oral works, offered as an amendment to article 2 of the existing convention.

That is the Berlin convention.

The Droitd' Auteur, the official publication of the convention, in its issue of July 15, 1927, states that one of the proposed changes in article 2, suggested by the Bugano convention, is destined to effect the same end, by substituting the words "form of expression" for "form of reproduction" in the text of article 2.

That is precisely what happened.

I would like to read you further from a memorandum submitted by our attorney, Mr. Charles Campbell, on July 18, 1928, on this subject. He said:

The courts, fortified by the opinions of such authorities as Renauard (vol. 2, pp. 142 et seq.) and Pouillet (no. 58) Merlin (Questions de droit) have decided by a long series of decisions that:

"The spirit of the law should take precedent over its too strict interpretation and have held that thought expressed orally, although not yet reduced to writing is and remains the property of the orator and no distinction should be attempted between works prepared in advance and those which are improvised (Trib. civ. series, 17 mars 1905, Paris 27 août 1928, Paris 30 juin 1886). There appears to be no recent cases in point and all of the decisions here cited refer to an unauthorized oral delivery of an oral work previously and publicly delivered by the plaintiff or to the publishing without authority of works orally delivered. The point I desire to make is that in France, where the principle of copyright in oral works is and for years has been theoretically accepted, no attempt appears ever to have been made to claim infringement of copyright in an oral work by reason of the publication of a literary work of different character, as for example, a novel or the public representation or performance of a dramatic work. * * *

Stolfi, the Italian authority on copyright law (vol. 1, pp. 363), stated that with certain exceptions based upon reasons of "public utility" modern law protects oral works.

That is one serious objection to our adhering to the Rome convention.

The second serious one is the moral rights of authors. This clause does not appear in the prior convention. It does appear in the Rome convention, and that is very drastic. It provides that

Independence of the patrimonial rights of the author, and even after the assignment of said rights the author retains the right to claim the paternity of the work, as well as the right to object to every deformation, mutilation, or other modification of the said work, which may be prejudicial to his honor or to his reputation.

You will note that there even after he assigns it he can still retain that, and these rights are made by law. They are inalienable and the author may enforce them even after he has parted with them, for a valuable consideration.

In our industry, I mean the motion-picture industry, to make change in an author's work is of the utmost importance. A dramatic play or story is usually written with an appeal to a particular class. A motion picture is intended to have entertainment value for the great masses, and its financial success depends upon its mass psychology entertainment value; the wider the appeal, the greater its value. A limitation on the right to change the plot, scenes, sequence, and description of the characters in literary works would bring havoc to the film industry.

A great example of this is to be found in the recent case of the production of the motion picture Wonder Bar. Warner Bros. purchased the motion-picture rights of Wonder Bar from a foreign publishing house to whom the authors had previously sold these rights. After paying a substantial sum to the publishing house, Warner paid an additional sum to the authors for the right to change the story and interpolate music, and paid a good price for that, and then after they had made the picture, at great cost, and released it in the United States and were about to release it abroad, the authors came and demanded an additional sum of money and served notice upon Warner Bros. that unless they paid an additional $100,000 for the rights of the author, they would stop the work. Of course, Warner Bros. are in this impossible position, even if they pay the $100,000, they can come back for more, and more, and more.

I will now pass on to the Cutting-Luce bill. We have a few objections to that. In its present form, this bill is ambiguous, vague, and its phraseology is misleading.

The bill was apparently drawn to grant copyrights in the United States to nonresident alien authors who are nationals of a country adhering to the International Copyright Union. The phraseology is broad enough to include nationals of countries that have joined either the Paris convention or the Rome convention, but the preamble of the bill wou'd indicate that the author of the bill might have had in mind only nationals of the countries that joined the Rome convention. It is difficult to ascertain from a reading of the bill if American authors are covered by its provisions. Section 2 grants copyright protection to

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.

Section 3 provides that

Copyright is hereby granted and secured by this act to all authors entitled thereto from and after the creation of their work.

Does the phrase "all authors entitled thereto" mean those authors that are entitled to copyright protection under the enabling act, to wit, alien authors, or does it mean authors that are entitled to copyright in the United States?

Section 4 of the Cutting-Luce bill amends the present Copyright Act of 1909 by giving the author the exclusive right to broadcast and

adding to the present law the moral-rights clause of the Rome Convention.

The alien authors would be entitled to these rights in the United States upon our adherence to the Rome Convention anyway, so the proposed amendment to our copyright bill would indicate that the author of the bill intended to bring American authors within its provisions.

May I pass this over to my colleague?

Senator DILL. Before you close, I wish to call attention to a question I omitted to speak about, namely, that when we joined the Pan American Union, they agreed to our formality requirements.

Mr. KILROE. I know what you have in mind.

Senator DILL. At the Fifth International Conference of American States which met at Santiago, Chile, there was adopted, at the instance of the delegation from the United States, a resolution which is described in the recently published report of this conference, as follows:

The delegation of the United States presented to the committee a resolution inviting the Governments which had not ratified the convention (the fourth Pan American) to do so, and furthermore, recommending to the Governments of all the American States that the necessary steps be taken for the registration of the authors in each country and that such registration be given adequate publicity in order that merchants and other interested persons may know that such works are under the protection of the convention. (Italics ours.) (From p. 27, of the report by the American delegates to the Secretary of State.)

It is thus clear that the policy of maintaining a full and authoritative record of the grant of copyright has been continuous throughout the history of our country, and is applied today with equal force to foreign authors as to native authors. (Congressional Record, vol. 74, pt. 7, p. 6474.)

Instead of abolishing our formalities, this specifically agreed to comply with our formalities.

Mr. KILROE. That is not quite the law.

Senator DILL. Well, that is my understanding of it.

Mr. KILROE. Article 3 of the Pan American convention provided that where a copyright was obtained in one State-that is, one member of the convention-and there are 11 countries including Brazil, which is a member of the Berne convention-in conformity with its laws shall protect its citizens in full, in their rights in all States, without the necessity of complying with any other formality, and there is a provision also there that there shall appear in the work a statement that indicates a reservation of the property rights.

Senator DILL. In other words, notice.

Mr. KILROE. There must be notice. There is also a proviso in the Berne convention to the effect that citizens of Berne convention countries getting a copyright are entitled to protection in all other Berne convention countries. There is a serious question as to whether these conventions supersede our copyright laws. No attempt has ever been made by an alien, so far as I know, to obtain a copyright in the United States under that act.

STATEMENT OF FULTON BRYLAWSKI, WASHINGTON REPRESENTATIVE OF THE HAYS ORGANIZATION, WASHINGTON, D.C.

Mr. BRYLAWSKI. My name is Fulton Brylawski, and I am Washington representative of the Hays Organization.

Further objection to the Cutting-Luce bill is that section 2 of the bill gives copyright protection for all works "without compliance with any conditions or formalities whatever".

Section 3 gives protection, "as to the creation of their work whether published or unpublished, including works of architecture and choreographic works and pantomines".

If the bill grants protection to American authors, two new items are added to the list of protected works, to wit, choreographic works and pantomines which were taken from article 2 of the Rome Convention, which provides, among other things, that copyright shall vest in 'choreographic works and pantomimes, the stage direction of which are fixed in writing or otherwise".

We do not know the meaning or the significance of the word "otherwise" as used in this article. Is the story as told in pantomime protected, whether or not it has been reduced to writing or other form of record, or are the physical movements and expressions of the actors the subject matter intended to be protected? We do not know.

The term of copyright fixed in the bill is vague, indefinite and incomplete. The bill provides that the length of the term "shall be governed by the provisions of sections 23 and 24 of the act of March 4, 1909".

Briefly, these sections of our present copyright act give a term of 28 years with the right of renewal for an additional 28 years on published works. The same term may apply to those works registered for copyright under section 11 of the copyright act. The bill is silent on the term of copyright on works which enjoy common law protection and which do not come under the provisions of our present copyright act.

Mr. Chairman, there is one thing I want to particularly call your attention to. In Mr. Solberg's remarks of yesterday, he referred to the provision contained on page 2 of the Cutting-Luce bill, which I want to read for the committee. That refers to works which, at the time of the adherence, if we do adhere to the Rome convention, are in the public domain in the United States. This section provides:

That as to copyrights 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 unto 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.

This section which I have just read was taken verbatim, word for word, from the Vestal bill, a bill introduced and passed by the House of Representatives in 1931, to enable the United States to enter the Berlin convention. Had we entered the Berlin convention we could have made such reservations as were proper and this particular reservation which I have just read to you was deemed proper as prior to its being incorporated into the Vestal bill inquiry was made of the director of the International Copyright Union whether or not the United States could enter the Berlin convention with this reservation to protect the rights of the nationals of the United States as to works which were in the public domain of the United States at the time the