Mr. McCLURE. In my opinion, the American Society of Composers, Authors, and Publishers would not lose anything by the bill, from the point of view of their enforcement rights. They would gain by the bill, because it would put out of their hands an instrument which has made them unpopular in various districts of the country. There is such a thing as good will in a well organized and well conducted business, and most business men try very hard to cultivate good will.

Mr. DUNN. Why do you suppose that they do not approve of this bill? The people who represent that organization seem to be men of intelligence and it seems to me that if this bill were going to be of benefit, then they would believe in the bill, and instead of that they seem to oppose it.

Mr. MCCLURE. That is a place where they differ with me, but they may be right.

The CHAIRMAN. After all, you are not an authority on every business of the country, although you are on the Interdepartmental Committee?

Mr. MCCLURE. That is true, sir.

Mr. DUNN. Doctor, I would like to have you explain this to me: Supposing I was a writer and it took me 5 years to write a play, and a broadcasting company, say, for instance, having about twenty stations attached to it, is going to put this play on.

Now, I am the composer or author of the play. Some corporation, we will say, selling toothpaste, has this broadcast in their interest. They are advertising a commodity. Now, this broadcasting company took it upon themselves, without consulting me whether they should broadcast this play. They have broadcast it, and I then sue and take them into court. Will you tell me how any judge in this world or in the next would be able to determine how much damage was done to me? How could he determine that?

Mr. MCCLURE. If I were the judge, the first thing I would do would be to ask you how much you thought you were damaged, and then I would submit that to experts, if I thought necessary. Mr. DUNN. Just a minute

The CHAIRMAN. Let the gentleman have the floor.

Mr. DUNN. You say, if you were the judge, you would ask me how much I was damaged?

Mr. MCCLURE. Yes.

Mr. DUNN. As I am an Irishman, I would say I have been damaged at least $100,000. What would you do about that as a judge? Mr. MCCLURE. I would consider that a very great exaggeration. Mr. DUNN. In other words, it would be left up to the judge to decide what damage was done against the author of that play? Mr. McCLURE. It is the business of judges, I understand, to decide such things.

Mr. DUNN. No; not most laws. For instance, we have laws in most every municipality, and have Federal laws, and if you violate a certain law, there is a minimum and there is a maximum. For instance, in the District we have ordinances and laws stating if you park your car a certain length of time, you pay so much money. Mr. McCLURE. Yes, sir.

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Mr. DUNN. Those laws are made to protect the people against violations of the law.

Mr. McCLURE. Yes, sir.

Mr. DUNN. In other words, as I understand it, this clause in the bill now of $250 is to prevent people from infringing upon the rights of the American Society of Composers, Authors, and Publishers. If we take that out of the law and leave it up to the judge, I cannot understand how any judge would be able to determine what damage was done to the composer or publisher or author of any play or any works.

Mr. McCLURE. Of course, human wisdom is not infinite, but I would suggest that a court which had the case before it, could tell very much better than even you gentlemen can looking forward to a case which has not even arisen.

I

Mr. DUNN. I do not know about that. For example, I will give you an illustration. Some years ago I used to travel a good deal by myself, and still do if I cannot get anybody to go with me. undertook to cross the street, and got off of a street car-and this story is worth while, showing what a country could do and the conductor told me it was all right to cross, and I took his word for it, and a car came along and I fell into a ditch and it took off two of my finger nails and cut up my legs pretty badly.

A man from the company came to see me to make a settlement, and I was willing to make a settlement.

However, I was told to go down to the railway company office, and I went down there, and the attorney representing them was a fellow who thought he was the whole cheese, and in my opinion he was only a slice.

He said right away, "Mr. Dunn, you have got no business traveling around by yourself. The railway company has got a right to construct and dig, and you violated a law in going out there, contributory negligence."

He said, "You are not entitled to any consideration, but because you are blind I sympathize with you, and I am going to give you $15."

To make a long story short, I said, "You keep your $15."

I won't tell the whole story, because it would take too long. However, to make a long story short, I carried that case into court to find out where the blind people stood in the eyes of the law. If I cross in the middle of the block, I know it is contributory negligence, but if I cross at the crosswalk I have a perfect right to do so.

Therefore, I wanted to make a test case of it. The case went into the court, and my attorney and the attorney representing the railway company appeared, and the latter went before the court and said there was not any case because it was contributory negligence.

My attorney said that it was not contributory negligence, because the railway company took my fare, and they should have taken me across the street to a safe destination. The law turned upon a Supreme Court decision.

The case went to the court and was given to the jury. The jury was not out very long, and I was willing to accept $25, but they brought in a verdict of $185. However, before the jury went out, the judge said to bring in an itemized verdict. In other words, ell that I would have received would have been $15 or $20.

The attorney representing me said-and this comes into this case, being a question like I am asking you-he said, "Mr. Dunn endured a great deal of pain, and pain cannot be measured by dollars and cents, and therefore he is entitled to some consideration.

"You made the statement, Your Honor, that Mr. Dunn did not say he had had any pain, and therefore it could not be considered. We will take it for granted if a man has his fingernails cut off and his legs cut to the bone he endures some pain.'

He told them how much pain I endured.

Here is a case where a man has composed a piece of music, which is being broadcast by a big broadcasting company; and they are not broadcasting for their good health, even though they do some good work. However, this company wants to make a lot of money, and they are making a lot of money.

Now, this man's works have been used by the broadcasting company. If it is up to the judge, how can the judge determine the damage done against the man who was the publisher, who composed this piece of music or wrote a play?

Take the law and strike out the clause? That is what I want your

answer on.

Mr. McCLURE. I think I can best answer that, Mr. Dunn, by saying that the provision in the copyright law is a peculiar provision. So far as I know, there is nothing like it in the law except the trade-mark law; and, therefore, I do not think analogies taken from other parts of the law are strictly in point here.

Mr. DUNN. Thank you.

The CHAIRMAN. Mr. Lanham.

Mr. LANHAM. I have one or two questions which I would like to ask for information.

Mr. McCLURE. Yes, sir.

Mr. LANHAM. You recall when we had the Vestal bill?

Mr. McCLURE. Yes, sir.

Mr. LANHAM. My recollection is that-with reference to the manufacturing clause in that bill-that we also had some provision with reference to the libraries being permitted to bring in certain books.

Mr. McCLURE. Yes, sir.

Mr. LANHAM. And that that law also provided for our entry into the Berne Convention.

Mr. McCLURE. Yes, sir.

Mr. LANHAM. My recollection is-and I want to know if I am right in this-that the manufacturing clause was modified by the library provision, which was not such a formality as would prevent our entrance into the Bern Convention.

Mr. MCCLURE. I think that feature of the bill was entirely satisfactory on that point.

Mr. LANHAM. In other words, the manufacturing clause would not have to be abrogated entirely before we could enter the convention?

Mr. MCCLURE. I think certainly the provision as it stood in the Vestal bill would be sufficient for us to go into the convention.

The CHAIRMAN. Dr. McClure, with the manufacturing clause in the Duffy bill as passed by the Senate, and if we assume that the

House would pass it that way, could we enter the Berne Convention with that manufacturing clause in there, or would the Berne Convention throw out the manufacturing clause?

Mr. McCLURE. I am very glad that you gentlemen have brought up that matter, because it is a thing to which I wanted to address myself; but in my desire to get through so that others could go on, I omitted it.

My instructions from the interdepartmental committee were that I should ask you gentlemen to eliminate the Trammell clause and insert in its place the precise provision that the Vestal bill contains, which the interdepartmental committee believes to be the correct provision.

Mr. LANHAM. Am I correct in this interpretation of the Vestal bill with reference to the manufacturing clause, that the Vestal bill provided that the works of American authors should be printed, bound, and so forth, in this country, but that that was not required of the works of foreign authors?

Mr. McCLURE. The Duffy bill would require that all American works, all works of American authors, in order to obtain copyright, must be manufactured entirely in the United States.

Mr. LANHAM. Yes.

Mr. McCLURE. No work by an American can get copyrighted in the United States, under the Duffy bill, unless it is manufactured wholly in the United States.

Mr. LANHAM. What is the situation with respect to the works of foreigners?

Mr. MCCLURE. With respect to works of other countries, the Duffy bill, as it was reported out of the committee in the Senate, provided that they should be allowed copyright of their works without the requirement of manufacture in this country.

The CHAIRMAN. The Duffy bill has the manufacturing clause in, and that manufacturing clause provides that wherever any foreign author receives an American copyright, he must print his book in America.

Mr. McCLURE. Not the Duffy bill as it was reported out from the Senate committee.

The CHAIRMAN. I am talking of the Duffy bill which passed the Senate.

Mr. McCLURE. I am talking about the one reported out of the committee.

The CHAIRMAN. The one reported out of the committee did not contain a manufacturing clause?

Mr. MCCLURE. As it was passed by the Senate, it contained what is usually called the Trammell amendment. That amendment provided that in order to distribute his works in this country, the foreign author must publish them in this country. He can get his copyright, but he cannot distribute, under the bill as it passed the Senate. And, as I have said, my instructions from the interdepartmental committee are to request this committee to restore the Vestal-bill provision, which is in effect, about the same as in the original Duffy bill.

The CHAIRMAN. Mr. McClure, let us look at section 11 of the Duffy bill. It reads:

Section 15 of such act, as amended, is hereby amended to read as follows: "That all copies of any copyright material in the English language which shall be distributed in the United States in book, pamphlet, map, or sheet form, shall be printed from type set within the limits of the United States, either by hand or by the aid of any kind of typesetting machine, and/or from plates made within the limits of the United States; or, if the text be produced by lithographic, photogravure, or photoengraving, or any kindred process or any other process of reproduction now or hereafter devised, then by a process wholly performed within the limits of the United States; and the printing or other reproduction of the text, and the binding of the said book or pamphlet, shall be performed within the limits of the United States. Said requirements shall extend also to any copyright illustrations, maps, or charts within any book or pamphlet, or in sheet form. Said requirements shall not apply to works in raised characters for the use of the blind."

In other words, this is the bill which passed the Senate in respect to the Trammel amendment, which would require all these things to be printed in the United States, and if we did what the Senate said, we could not enter the Berne Convention with that amendment.

Mr. MCCLURE. What that provision says is essentially that one could not distribute.

The CHAIRMAN. That is what I said.

Mr. McCLURE. That is the essential difference between the old manufacturing clause and the Trammell ainendment.

Mr. LANHAM. May I ask another question for information which I want because it is not quite clear in my mind?

Mr. McCLURE. Yes, sir.

Mr. LANHAM. As I understand it, we could enter the Berne Convention, if we had a manufacturing clause requiring books by American authors to be printed and bound in America?

Mr. McCLURE. Yes, sir.

Mr. LANHAM. And that formality would not prevent our adherence to the convention?

Mr. McCLURE. No, sir; it would not.

Mr. LANHAM. But if we put in a provision that requires all foreign authors' works to be so distributed in this country, to be printed and bound in this country, that that would be a formality which would preclude our adherence? Is that correct?

Mr. McCLURE. In my opinion the latter provision should not be put into the law any more than the former, but the essential thing there is the meaning of the words "without formality" in the treaty. Under the treaty copyright is to be without formality. If this requirement of distribution is a formality, then, of course, it would violate the treaty. It is a difficult question and one which no one has ever authoritatively decided.

Mr. LANHAM. For instance, under the Vestal bill, which, as I understand it, would not have precluded our entrance into the Berne Convention, there was a provision with reference to American works, that they should be printed and bound in this country.

Mr. MCCLURE. Yes, sir; in order to get copyrighted.

Mr. LANHAM. And that that was not such a formality as would have prevented us from entering?

Mr. McCLURE. No, sir.

Mr. LANHAM. What I want to know is this, because I think it is of interest to the committee here: If this provision also applied to the works of foreign authors, to be distributed in this country, that is, the requirement that they be printed and bound here, would