United States made the announcement it adheres or ratifies the Berlin convention.

The section which I have just read in the Cutting-Luce bill and which was incorporated in the Vestal bill and reincorporated here is substantially identical in phraseology with the reservation which Great Britain made under orders in council dated November 25, 1919, at the time Great Britain adhered to the Berlin convention. This reservation I call to the attention of the committee.

Mr. Chairman, under the Rome Convention, article 27, the United States, if it enters, may not make any reservations to protect the rights of its own nationals. So that while this provision would have been perfectly proper in the Vestal bill, wherein we sought to enter the Berlin Convention and follows the language of the reservation which Great Britain made at the time it adhered to the Berlin Convention, we cannot incorporate any such reservation when we join the Rome Convention. Is that perfectly clear?

Senator DUFFY. Yes; I understand your argument.

Mr. BRYLAWSKI. That means, Mr. Chairman, that the United States, as to all of these works which are in the public domain, and which have been freely used by anybody, become, from and after the date when we adhere to the Rome Convention, automatically protected in the United States, regardless of the amount of money we may have spent in using them. It will stop the radio broadcasting stations from using a vast amount of music material which is now free. It stops us from using a vast amount of literary material which automatically is free, but will not automatically reserve to our own nationals the same protection which England has reserved to its nationals when it joined the Berlin Convention, which is highly important.

Yesterday the committee heard 6 witnesses who favored this legislation, 3 of whom, however, turned out to be opposing it, and there are a number of people here who want to be heard.

I just want to suggest one thing to you, Mr. Chairman: I have been a student of copyright matters and have been an active participant and witness in hearings held in this body since the date when the present act of 1909, and before, went into effect, and I cannot, as a person dealing practically with the subject of copyrights, understand the mad haste which the proponents of this measure urge for the purpose of entering the Berlin convention. The citizens of every country in the world, with the exception of the English-speaking countries, secure copyrights in the United States exactly the same as our own citizens do, merely by publishing their works, with notice, and some time thereafter, at their convenience, and at their leisure, providing they do not wait too long, too many years, pay their $2 to the copyright office to register their claim to a copyright, and they have exactly the same protection, on the same terms, as is given our own citizens.

The citizens of the United States, on the other hand, enjoy copyright protection, I believe, sir, automatically, or practically automatically, in a great many countries, especially in those countries where they have automatic copyright, because in establishing our copyright relations with these countries, I know that the Presidential proclamation states that satisfactory assurances have been given this country generally that these countries grant copyrights to American

citizens on substantially the same basis as they grant to their own authors, and the basis on which they grant their own authors is without formalities, so that we have the benefit of that.

It is a rather limited protection, because the countries are small. On the other hand, they are granted the same term as our citizens, as we grant to our citizens, merely by paying $2 and registering their works here, and we have a vast market for their protection.

There is to be a further revision of the National Copyright Union in Brussels in 1935, plans of which are already under way for calling, and I think it behooves this Congress to weigh this very, very carefully and not to rush into a convention which, as Dr. McClure has suggested to the chairman, may become the supreme law of the land and abolish our own copyright laws, when there is a further convention to be held in 1935 that may perhaps grant us the kind of relief and the kind of reservations to which we are entitled.

We have been functioning, Mr. Chairman, since 1886, when the first Berne convention was held, in 1886. That is a matter of 44 years ago. In 1891 the United States, for the first time, enacted copyright legislation which permitted foreigners to enjoy copyright in the United States. Since that time we have gotten along all right.

The motion-picture industry would like for the copyright laws to be changed. They have, perhaps, less interest, selfish interest, than any other group, because their whole interest is in a proper clarified copyright law so that they will understand when they purchase rights what rights they are acquiring and that they can get a good title to them. We think, Mr. Chairman, that to enter, for the United States to enter, the Berne convention at this time would absolutely play untold havoc for the motion-picture industry, with hundreds and hundreds of millions of dollars which it has at stake.

Therefore, I earnestly urge you not to be precipitous; do not overturn our copyright laws at the present time, by foisting upon the American people the copyright laws of European countries. Let us amend our own copyright laws singly and then having done so, if we feel we want to enter a foreign union, by all means do so, but do not be too precipitous about it.

We offer this memorandum for the record.

Senator DUFFY. The memorandum will be received. (The memorandum referred to is as follows:)

I. OBJECTIONS TO 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

1. RESERVATIONS

Adherence by the United States to the Rome Convention must be made without reservations of any kind (art. 27). Under the Berne Convention of 1886, 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, countries with these reservations may join the Rome Convention and still enjoy the full benefits of these prior reservations. If not all, at least the principal countries of Europe have made such reservations. If the United States joins the Rome Convention, it will not enjoy equal privileges with the other members of the Convention and it will be the only important country of the world without reservations in the Copyright Union.

2. CONSTITUTIONALITY

The United States Constitution contains the following provision relating to copyright (art. 1, sec. 8):

To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

The Rome Convention (art. 2) gives copyright protection to:

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'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."

The Rome Convention apparently recognizes the principle of oral copyright. This is evidenced by the fact that the Rome Convention broadened the definition of literary and artistic works, as defined in the Berlin Convention, so as to include oral copyright. The Berlin Convention defines literary and artistic works. * * * "Whatever the mode or form of reproduction": The Rome Convention gives copyright protection to literary and artistic works.

"Whatever the more or form of expression": An enabling act granting oral copyright would be of doubtful validity since Congress is empowered by the Constitution to enact copyright legislation only for "writings.' Our courts have given a broad definition to the term "writings" and have held it includes photography, painting, engraving, sculpture, and other tangible media for the physical recording and expression of thought. 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 Constituiton.

3. MORAL RIGHTS OF AUTHORS

Article 6 bis. of the Rome Convention reads:

"(1) Independently of the patrimonial rights of the author, and even after the assignment of the 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.

"(2) It is left to the national legislation of each of the countries of the union to establish the conditions for the exercise of these rights. The means for safeguarding them shall be regulated by the legislation of the country where protection is claimed."

The moral rights of the author are inalienable; he may enforce these rights even after he has made an assignment of them for a valuable consideration.

The right to make changes in an author's work is of the utmost importance to the motion-picture industry. 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, theme, sequence, and description of the characters in literary works would bring havoc to the film industry. An example of this danger will be fourd 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, Warners paid an additional sum to the authors for the right to change the story and interpolate music. After the picture had been in distribution in the United States and ready for distribution in foreign countries, the authors made a demand for an exorbitant additional sum of money, to wit, $100,000, under the moral-rights clause of the Rome Convention, threatening that if they did not receive an adjustment of the claim they would enjoin the distribution of the picture in Europe and seek money damages.

II. OBJECTION TO THE CUTTING-LUCE BILL

In its present form, this bill is ambiguous, vague, and its phraseology misleading.

(1) PERSONS ENTITLED TO COPYRIGHT PROTECTION

The bill was apparently drawn to grant copyright 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 Berne Convention or the Rome Convention, but the preamble of the bill would 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:

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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 amends the present Copyright Act of 1909 by giving to the author the exclusive right to broadcast and adding to the present law the moral rights clause of the Rome Convention. Since alien authors would be entitled to these rights in the United States upon our adherence to the Rome Convention, the proposed amendment to our Copyright Act would indicate that the author of the bill intended to bring American authors within the provisions of the bill.

(2) WORKS PROTECTED

Section 2 of the bill gives copyright protection for all works "without compliance with any conditions or formalities whatever."

Section 3 gives protection—

66* * * after the creation of their work whether published or unpublished, including works of architecture and choreographic works and pantomimes."

If the bill grants protection to American authors, two new items are added to the list of protected works, to wit, choreographic works and pantomimes which were taken from article 2 of the Rome Convention, which provides among other things that copyright shall vest in

66* * * choreographic works and pantomimes, the stage direction of which are fixed in writing or otherwise."

We do not know 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?

(3) TERM OF COPYRIGHT

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.

(4) WORKS IN PUBLIC DOMAIN

The act attempts to remove a great number of works from the public domain in the United States and places them in the domain of copyright protection. If this is done, it will lead to confusion and involve the film industry in expensive litigation. After the lapse of so many years, it will be almost impossible to trace the true owners of the works that are taken from the public domain and given copyright protection.

The bill attempts to give protection to persons who have expended money or assumed liability in the "exploitation, production, reproduction, circulation, or performance" of a work before it was taken out of the public domain. The bill, however, does not clearly state how far the protection goes and when it ceases. Does this protection continue for all time after the expenditure of money on a particular work? Can a music publisher who has made arrangements of public domain musical numbers continue to use these arrangements after the act goes into effect? Is a motion-picture producer free to use literary material which he purchased prior to the passage of this act and which literary material was in

the public domain in the United States at the time of purchase or must he purchase the rights in the United States from the legal owners, whoever they may be. If he is required to purchase the rights in the United States, from whom will he make the purchase from the legal heirs and the representatives of the author or from the holder of the copyright in cases where the author has assigned the copyright at a time when the work was in the public domain in the United States? Consideration of these questions is academic since we cannot join the Rome convention with the reservations contained in section 2 of the Cutting-Luce bill, relating to public-domain material.

This section in the Cutting-Luce bill was taken verbatim from the Vestal bill to amend the copyright laws of the United States to enable the United States to enter the Berlin convention and is substantially identical in phraseology with the reservation made by England to the Berlin convention, as set forth in paragraph 4 of its order in council on November 25, 1919.

III. NECESSITY FOR THE REVISION OF OUR PRESENT COPYRIGHT ACT An adherence to the Rome convention will require a complete revision of our present domestic copyright law. Treaties and the acts of Congress are alike the supreme law of the land so that a later treaty inconsistent with an earlier act of Congress would supersede such an act. The adherence of the United States, however, to the Berlin convention is not such a treaty as would supersede our copyright law, and it is questionable that the adherence of the United States to the Rome convention would be effective without an enabling act or a revision of the copyright law. In 1927, the United States announced its adherence to the convention for the protection of industrial property signed at The Hague in 1925; efforts are still being made in Congress to amend the patent laws of the United States to give effect to the provisions of this convention.

STATEMENT OF JULIUS BRYLAWSKI, VICE PRESIDENT AND CHAIRMAN OF THE LEGISLATIVE COMMITTEE OF THE MOTION PICTURE THEATRE OWNERS OF THE UNITED STATES, EARLE BUILDING, WASHINGTON, D.C.

Mr. BRYLAWSKI. My name is Julius Brylawski, vice president of the Motion Picture Theatre Owners of the United States and chairman of the legislative committee of that same body.

The subject matter of the bill which the committee is now considering was taken up in great detail at the annual convention of the Motion Picture Theatre Owners of America, held in Los Angeles, April 12 to 15 of this year, and as a result of which resolution no. 16 was introduced and passed by that body.

With the permission of the chairman, I would like to read this resolution, which is merely a page and a half, and then speak for one minute or so on this matter.

MOTION PICTURE THEATRE OWNERS OF AMERICA, FOURTEENTH ANNUAL CONVENTION, LOS ANGELES, CALIF, APRIL 12 TO 15, 1934

Resolution No. 16 introduced by Sydney B. Lust, of Washington, D.C.

Whereas we are creditably informed that the State Department has transmitted to the Senate, for its consent and approval, a treaty that would provide for the adherence of the United States to the Convention of Berne for the Protection of Liberty and Artistic Works, of September 9, 1886, as revised at Rome on June 2, 1928, known and referred to as the "International Copyright Union"; and Whereas the adherence of the United States to said treaty would require certain changes in the copyright laws of the United States; and

Whereas, Senator Cutting, of New Mexico, has introduced a bill in the Senate, known as "S. 1928", to provide for such changes in the copyright laws of the United States; and

Whereas the proposed changes provide, among other things, the admission to copyright of works of foreign authors who are nationals of any country which is a member of the International Copyright Union, without compliance with