age set, that infringements out over the country cannot be in any way adequately prevented. The principle you have argued here in great detail, but I put in the record the opinion of the publishers there should be some recognition of the minimum damage, about $200. And we also believe-and I will leave for your consideration a draft of that suggestion-that there might be a change in the maximum in order that there should be a choice of the owner of the right between the acceptance of damages established by proof and the sum fixed by the court in such amount as will properly and justly compensate him, within prescribed limits, or to elect to accept such fixed sum in lieu of proving damages, and that the amount in that case should not be as much as $25,000. Therefore, $5,000 is recommended, while in respect to minimum damages the sum of $200 is recommended-not by way of criticism, but by those who may be called upon to fix the minimum, consideration must be given to the extent of the country and the different places therein where infringements might occur, and the fact that an infringement in one town in the State may affect a locality far removed from there, with the result there is a likelihood that the lesser amount may not prove to be a deterrent. That is our comment on so important and I know, to you, very difficult thing to discuss and adjust. We have a fourth final and direct suggestion, and that is in the Sirovich bill, the present and the past bill, there has been found a very sound suggestion and important one in the principle that is established. Whereas under the present law the United States is permitted to use material like maps without damage to the copyright thus established, it should be mentioned that they should ask permission at the time. That is a natural courtesy between equals-I mean between a nation and its citizens, and could be very happily and I am sure justly inserted in any new draft of wording that is filed and has already been included in the Sirovich bill, which I think would be satisfactory to the Government and to those interests involved. Those are our direct suggestions in a presentation that I wanted to be short and cover only those things that were specifically here. I do not want to close without again saying that we come to these hearings with a very deep feeling we shall do everything in our power to adjust ourselves to the principles of administration that the Government believes in; that we are impressed with the fact this has been, in the Duffy Bill, the first attempt of the active departments of the Government, with what wisdom they have accumulated, to provide a statute which would bring their wisdom to bear on problems of agreement and harmony among those who produce and use and in what they have brought forward we want to play our part in producing legislation which has really been for so long over due. We are internationally minded in the extent our business touches other countries and, therefore, are aware that legislation which works well in other countries might not work well here; but we are extremely impressed, perhaps more than many others, that the United States is on the eve of being able to produce things that do belong to the world; we are on the eve of a greater export business in our industry. Both our scholars and our creators are producing material that can be shipped abroad. Without any derogatory reflection on this foreign material, we are importing less and less from other countries every year. Our people like our own products better; they like the products of our own manufacturers better and the situation has arisen where we must be in the export field: When this legislation first came up for consideration, one important matter was whether we could produce as cheaply as other countries. I call your attention to the fact that in the lower reaches of production, where an export field could be had, there is no country in the world that produces such books as we produce for from 10 cents to a dollar. Where mass production comes in, there is no comparison in other countries, and we are exporting because we can produce in mass in that way, besides exporting our ideas and new and fresh material. In that way, we come to this hearing not in any perfunctory way, not with any desire to be selfish, but with the intention to see the United States legislate on so fundamental and important a matter. Mr. DALY (presiding). I think you said, Mr. Melcher, the committee's attorney or someone connected with you had prepared certain amendments to these bills, or additions that, in your judgment, would cover something not covered by any of the three bills. If you have such amendments prepared, I wish you would leave them with the reporter, to be incorporated in the record and given our most careful consideration. Mr. MELCHER. I would like to leave with you an example of what we make for 10 cents [exhibiting]. I am not trying to sell you, but there is absolutely no country in the world that can produce that for 10 cents. I think it is extraordinary and today we are in the export field with no country in the world producing anywhere near what our labor is producing. If anybody else can make better books than they do for sixpence, I have not heard of it. (The paper submitted for the record by Mr. Melcher is as follows:) The Committee on Copyright of the National Association of Book Publishers has carefully considered the several copyright bills, S. 3047, which was passed by the Senate August 7, 1935, and presented in the House of Representatives on the 12th day of August 1935, and referred to the Committee on Patents of the House of Representatives, known as the Duffy bill, and also those introduced in the House of Representatives under dates February 21, 1936, and February 24, 1936, known as the Sirovich bills; and this committee has also considered such proposed amendments to the Duffy bill of which it has received copies. This committee, on behalf of the National Association of Book Publishers, is mindful of the objective which prompted the demand for a new or an amended copyright act, which would result in entrance of the United States into the International Copyright Union, the protection of American literary material abroad, and the opening of opportunities for America to expand its export of literary rights and of printed material to markets now ready for it. We have confined our recommendations to matters of change calculated to realize this end. This association has repeatedly gone on record in favor of the international protection of rights in literary and artistic material, and we wish again to emphasize the urgent importance of legislation to this end. Controversy has long attended all efforts to modernize our Copyright Act and bring it in line with the simple requirements for entering the union. We believe that there are sound reasons for the United States taking action at this time and for this reason will endeavor in our brief to take a constructive, nonpartisan attitude. Our committee addresses its recommendations to the Duffy bill, because it was drawn by the Interdepartmental Committee on Copyright appointed by the State Department, a committee which had no bias in favor of persons, industries, or users of copyright material. We must first most strongly stress the need of rescinding the "manufacturing clause" added to the Duffy bill in the Senate and known as the Trammell amendment. Under this amendment embodied in the text of S. 3047 now before the House committee, there could be no distribution of English books unless they were manufactured here. In arguments for this manufacturing clause the fallacious assumption has been made that without it all books of English origin sold in this country would be manufactured abroad. This is entirely contrary to any reasonable expectation or probability. The fact is that every book publisher can testify that it is only on small editions that there is any substantial saving through manufacturing in England. The American public likes the American manufactured book and for this reason as well as for reasons of convenience and economy on all printings except very small editions, publishers prefer to manufacture their books of English origin here and will undoubtedly continue to do so. The effect of this amendment would be to prohibit the importation each year of six or eight hundred worth-while books in small editions which are now brought into this country from England; it would deprive American binders of the work of binding these books and the public of the contact with these books. It is not clear either that libraries or individuals could import copies of these books, as this prohibition against distribution would seem to be contradictory to what is offered as an exception for importation in section 31, and it would seem likely that all importation which would be a form of distribution would be prohibited by this new section 15. This clause would be detrimental to public interest and disastrous in its effect on the distribution here of small editions of English books which American readers and scholars want to read. Furthermore, it must be remembered that it is common for a book, imported by an American publisher in a small edition, to find a wider market than was at first anticipated and then to be set up and manufactured here in large quantities, providing additional work for American labor and increased business for bookseller and publisher. If the present section 11 in S. 3047, amending section 15 of the copyright law, were retained, the objective we have in view: Improvement in international relations through entrance into the International Copyright Union could not be obtained since this clause is in conflict with the Bern Convention. We therefore urge you, as the State Department has done, to rescind this clause. The book publishers believe that our export market must not be lost sight of. This should increase through the protection this law would give to our literary material abroad. Exports of books of American authorship entirely manufactured here, to foreign nations which now resent the long delay in our entering the Union, would be more substantial. The unquestioned vitality of American literature today and the significant contributions of our scientists and scholars as recorded in books are creating an increasing demand abroad, and if we were protected in those markets there would be benefits to author and publisher alike, and also to all concerned with American book manufacture. 1. Our specific recommendation is to eliminate lines 21 to 25, both inclusive, on page 11 of bill S. 3047, and lines 1 to 14, both inclusive, on page 12 thereof, and in lieu thereof insert the text below which follows closely that of the Vestal bill which was approved, when before Congress, by authors, printers, and publishers. The rearrangement in a few places is in the interest of clarity and is submitted as being a drafting of service to your committee: "SEC. 11. 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, sheet, or in any other 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, photographic, photogravure, or photoengraving, or any kindred process, or by 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 or other form in which the copyright material may be completely produced, 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 or other form: Provided, however, That said re quirements shall not apply to (1) said works printed or produced in raised characters for the use of the blind; (2) said works of foreign origin in a language or languages other than English; (3) said works by nationals of the United States, copies of which are distributed only in foreign countries; (4) or said works in any language or languages, created by foreign authors, first published in a foreign country which is party to the Convention for the Protection of Literary and Artistic Works.'" The above section as restated, includes all the forms now known or to be perfected in the future for reproducing any work. The section without really derogating from any protection now accorded our nationals in the reproduction of literary material in readable form, removes an absolute bar to the United States joining the International Copyright Union, and thus obtaining protection for our material abroad. In this connection attention is directed to the protection provided by the proposed amendment to section 31 of the present act, as set forth in lines 4 to 23, inclusive, on page 24 of the Duffy bill. 2. It is our very urgent recommendation that the problem of whether designs should be protected by patent or copyright law should not be made part of these present proposals to give long-delayed revision to our copyright code. 3. In addition to the above we wish to propose a change in the amendment in the Duffy bill with respect to damages, in the event of infringement. We recommend the deletion of lines 17 to 24, both included, on page 17, and lines 1-9 both included on page 18, and that there be substituted therefor the following: "Section (a), subdivision (3): "To pay at the option of the owner of the right infringed, in lieu of the damages and profits provided for in the foregoing paragraph 2, such statutory damages as compensation for the direct and indirect damages sustained for all infringement by any one infringer up to the date of trial, as shall, in the opinion of the court, be sufficient to prevent their operation as a license to infringe, and as shall be just, proper, and adequate, in view of the circumstances of the case, but in no event to exceed the total sum of $5,000, nor to be less than $200, which award shall not be deemed a penalty. "Section (b): "An unauthorized performance by radio broadcasting, transmitted simultaneously by two or more connected stations, or an infringement involved in the making, distributing for exhibition, and the exhibition of a motion picture by the maker, distributor, or the distributees thereof, where the making of such motion picture infringes a copyrighted work, shall be deemed for purposes hereof the act of one infringer." The reasons for these recommendations are: There should be a choice in the owner of the right between the acceptance of damages established by proof and a sum to be fixed by the court in such amount as will properly and justly compensate him within prescribed limits. We are of the opinion that if the owner of the right shall elect to accept a fixed sum in lieu of proving actual damage the amount thereof should not be as large as $20,000; therefore, $5,000 is recommended. With respect to minimum damages the sum of $200 is reconmended, not by way of criticism of those who may be called upon to fix the minimum, but consideration must be given to the extent of the country and the different places therein in which infringement may occur, and to the fact that an infringement in one town or city may affect a publication in a locality far removed therefrom, with the result that the likelihood of a lesser amount of damage may not prove to be deterrent. The amount of damage at which an infringement may or may not be sufficient to prevent its repetition or reduce it practically to a license fee is subject to so much variation that in many instances a smaller amount may defeat the object to be attained; therefore, a minimum is herewith recommended. In this connection we also refer to the existing Copyright Act in which these amounts prevail; they seem to have caused no hardship calling for any drastic change. * The production of books preceded all protection by copyright legislation and the recognition of copyright. The book publishers of the United States have been mindful of the rights of authors and under the existing Copyright Act have given the creators of copyright material little cause for complaint. We are, in addition, creators of copyrightable literary material in our own right. This committee feels that the great objective, the enjoyment of international copy53579-36-62 right, should not be lost sight of at this time, and the opportunity to obtain the end should not be sacrificed by controversies between users and producers of literary work. Some of the general benefits under this revision of the law that should cause both creators and users of copyrightable material to compose their differences in order to obtain important objectives should be reviewed. Of great advantage is the protection of our literary rights and books abroad in return for protection given to foreign authors here; the removal of difficulties and technicalities in protecting literary property in this country by the establishment of the principle of divisibility of copyright; the right of separate suit; the right to register manuscripts; the protection of broadcasting and public-performance rights of literary property which is left in doubt in the present law; the establishment of a single term for copyrights. Respectfully submitted. NATIONAL ASSOCIATION OF BOOK PUBLISHERS, By FREDERIC G. MELCHER, Chairman. APRIL 13, 1936. Mr. DALY. We will now hear Mr. Tufts. OF BOOK STATEMENT OF WILLIAM O. TUFTS, ON BEHALF OF RANDMCNALLY, AND THE NATIONAL ASSOCIATION PUBLISHERS Mr. TUFTS. My name is William O. Tufts, special representative, Rand-McNally & Co. I am a member of the committee of the National Association of Book Publishers which Mr. Melcher has represented, but only because the company which happens to be my employer is interested in many fields of publishing, as I speak today it is for the map publishers rather than for the publishers of periodicals, directories, or the various other things in which we also have an interest and publish. It is interesting, as I come to the table, to find two Rand-McNally Atlases before me, and I note that simply as an indication of the interest and prestige which this company has had over a great many years. The remarks which we have brought into the hearings in previous years have been fairly voluminous and have covered fairly well the particular interest which the map publishers have, and my remarks today will be in rather brief form. In behalf of the copyright committee of the map publishers of the United States the following statement is presented to emphasize the features of copyright legislation which are of major importance to our industry. We desire to express our appreciation of the time and energy being devoted by your committee to this subject. We made two written requests to the Patents Committee of the United States Senate during the consideration of the so-called Duffy bill, but no acknowledgment of our requests was ever made, no public hearings were announced, and we were never given an opportunity to express our interest in the measure which was finally passed as S. 3047, except before the interdepartmental committee. Therefore, I feel that the presentation of the matter before a committee which has given as much time and energy as has the House Patents Committee is a very useful and important addition to the fund of knowledge which is necessary for such complicated legislation. There are three important points to be kept in mind by your committee while framing the copyright legislation. One is the right of protection, and the copyright title must in many cases rest with the |