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Mr. BLOOM. Very well, I suggest we take it into consideration. Mr. LUCAS. I was not authorized to use it; neither was it given to me not to use.
Mr. BLOOM. But it is in the record.
Mr. GOODWIN. Mr. Fenning asked permission to address the committee for a few minutes.
STATEMENT OF KARL FENNING, FOR THE AMERICAN PATENT LAW ASSOCIATION
Mr. FENNING. I am a patent lawyer of Washington and chairman of the committee on laws and rules of the American Patent Law Association. That association is made up of members all over the United States who are specializing in the practice of the law of patents, trade-marks, and copyrights. We are enthusiastic over the idea of having the United States join the International Copyright Union. I believe that that is a desirable thing to do.
However, we differ with the proponents of this bill who insist that the provisions of this bill must be adopted in order to get us into the union. We object to two things which are put into this bill which are innovations in the American copyright law. We have had in the United States copyright law since before the Constitution was adopted. The States themselves had copyright laws. In all those laws, including our national law as it stands, there has been a requirement for some formality with respect to a claim of copyright a notice on the copyrighted article and a deposit, or at least a claim of copyright deposited, whether the article is deposited or not. We believe that those two things should be retained in our law, and, as we see it, it is not necessary to eliminate those two things in order to go into the International Union.
As we see it, substantially everyone who has proposed giving protection without formality has merely said, "We do it not because we want it particularly, but because the international convention requires us to do it." To be sure, the international convention does, in one of its early sections, make a requirement of that sort. Possibly I had better read the words of the convention. Article 4 of this convention, after having set up the preliminary matters, among others, states that no requirement of formalities shall be demanded for giving copyright protection. But article 25 says:
The States outside of the union which assure legal protection of the rights which are the object of the present convention may accede to it upon their request.
This accession shall be made known in writing to the Government of the Swiss Confederation, and by the latter to all others.
Such accession shall imply full adhesion to all the clauses and admissions to all the advantages stipulated in the present convention. It may, however, indicate such provisions of the convention of September 9, 1886, or of the additional act of May 4, 1896, as it may be judged necessary to substitute provisionally, at least, for the corresponding provisions of the present convention.
It is clear, therefore, that we may go into the present international convention and substitute for the definite requirements of the present convention any portion of the 1886 convention that we wish to substitute.
We find in the 1886 convention that it is not essential for us to give protection without formality-it was not essential under that conven
tion to give protection without formalities. Article 2 of that 1886 convention says:
The enjoyment of these rights is subject to the accomplishment of the conditions and formalities prescribed by law in the country of origin of the work, and cannot exceed in the other countries the term of protection granted in the said country of origin.
It is very clear, therefore, that the United States may enter the international convention at the present time and say, with reference to the clause giving protection without formalities, "We prefer to go back to the 1886 convention and insist that the reciprocal rights which we give are given only on the basis of complying with the requirements of our own law."
Mr. Lucas has suggested to you that his association sees-and I think most of us can see-real disadvantages in brushing aside all notice and formalities. Notice, I think, is essential. Deposit is a formality. Deposit is essential. A claim of right is essentially a formality. It seems to me those three should be there.
One of the great objections to the law, on most subjects, is its uncertainty. No matter how careful the draftsman of the law is, no matter how careful the interpreter of the law is, still uncertainty will creep in. On the other hand, the ideal law is a law that is certain. To say that matter which may be produced anywhere in the world is immediately protected by copyright in the United States with no opportunity for anyone in the United States to make a search or have the matter brought to his attention and no opportunity when the matter is brought to his attention to find on it a claim that it is copyrighted leads to an entire lack of certainty as to the copyright law. It seems to me, therefore, unless some paramount reason can be shown for changing what has been our law for over 150 years, we should stick to the thing which does make our law certain.
Mr. BLOOM. May I ask a question there?
Mr. FENNING. Yes.
Mr. BLOOM. Do you know of anyone else, copyright lawyer or any member of your association, that agrees with you in your contention in reference to the interpretation of the law?
Mr. FENNING. Of the convention?
Mr. BLOOM. Yes.
Mr. FENNING. Yes; my whole committee.
Mr. BLOOM. Do you know anyone outside of the committee that agrees with you?
Mr. FENNING. I have not presented it to anyone outside of the committee.
Mr. BLOOM. You think we can go into the Berne convention and still continue the formalities we have at the present time?
Mr. FENNING. It seems to me we can go into that convention with a reservation, and the convention itself contemplates a reservation. Mr. BLOOM. Yes. Now, have you ever had, or do you know of anyone who has ever had, an opinion whether this can be done or not?
Mr. FENNING. I do not believe anyone has bothered about it. They have read the first part and have said, "Now, we will have to go into it."
Mr. BLOOM. Do you not think anyone has considered what formalities we will have to agree to before going in? The committee has had it how many years!
Mr. FENNING. I do not know that anyone has raised it. For the consideration of the particular matter to which I have called your attention to-day
Mr. BLOOM. I looked over that thing and tried to get the same view that you have reached in reference to this country going into the Berne convention with the formalities. Now, I have not found anyone yet outside of your statement here to-day that agrees with that convention.
Mr. FENNING. I have found no one to whom the matter has been presented that disagrees with it.
Mr. BLOOM. Then why have we not, in ordinary bills asking that this country enter the Berne convention, passed those bills?
Mr. FENNING. I do not know.
Mr. BLOOM. Has it not been the contention of people that we will have to conform to the formalities over there and eliminate them?
Mr. FENNING. That has been the contention. I do not know where there has been a definite logical statement why that contention has been supported.
Mr. BLOOM. Have you ever stated it before this committee?
Mr. BLOOM. Do you know of anyone else who has stated it?
Mr. FENNING. I have not mentioned it.
Mr. BLOOM. I am not a lawyer, but I have studied that thing carefully. I think there is something in what you say, but I would like to find some one else to give me further light on the subject.
Mr. FENNING. I assume the proponents of the bill will take that up.
Mr. BLOOM. You are the first one that has appeared here who has taken that view of the law in reference to the Berne convention. I would like to hear from some one else.
Mr. FENNING. Perhaps I can do that for you.
The section under the Constitution under which the copyright is granted is the same section under which patents are granted. The terms of the Constitution apply in the same way. The same terms are applied to copyrights as to patents. Neither the word "copyright nor "patents are included in that section of the Constitution. Therefore the law which you may pass is not a common-law copyright law, but a law to give an exclusive right for a definite purpose-in aid of science and the useful arts.
The inventor in many instances is a man of little learning, frequently of substantially no book learning. He produces a practical thing. He is a practical workman. The man who comes before you and asks for a copyright, of course, is not a man of that type. He is literate; he writes readily and freely and is educated. Why Congress should turn to the inventor, who is producing the practical thing which makes for progress and the advance of civilization and say, You must come to the Patent Office at a definite time and go through certain specific formalities and definitely show what the invention is, and when the patent is issued put upon each article a notice of that patent," and then turn to the educated, generally cul
tured man who wants copyright protection and say, "You are ignorant and we do not expect you to have any intelligence and do not expect you to do anything; all we expect you to do is to go out and mulct the public." It seems to me that is illogical.
Mr. BLOOM. Does not the inventor get greater rights than the man who gets the copyright?
Mr. FENNING. Generally, no.
Mr. BLOOM. When a man makes an invention he has a search made and he gets something. The holder of the copyright just slips in, one after another, a paper or something of that kind and gets another paper from the librarian of the copyright division. All he has is a license to sue.
Mr. HESS. He has only a claim.
Mr. BLOOм. He gets a paper that he had filed with the Librarian of Congress a certain book or a certain song, but the inventor has got to search and come in and show that he has got something. There is the difference.
Mr. FENNING. That means you are putting that much heavier burden on the inventor than the copyright man. That is all I suggested, and I agree that you are putting a great deal greater burdenMr. HESS. Does not the inventor get a monopoly?
Mr. FENNING. Yes.
Mr. HESS. The copyright man does not. You can go out and buy any copyrighted article.
Mr. FENNING. The bill says you have a monopoly-an exclusive right. If that is not a monopoly, I do not know what is.
Again, for the sake of certainty, I am satisfied that the time of the copyright protection should be a definite number of years from a definite date. The international convention provides-and this bill provides, and I understand the reason this bill provides it is because the international convention provides it-an indefinite period of 50 years after the death of the author. I do not know whether any of the members of the committee have had the necessity as I have of endeavoring to locate a man whose address is given me as of 20 years or 30 years or 40 years ago. Even in a place like New York City, which has had city directories for many years, or in small towns where the people are supposed to know each other, frequently it is impossible to locate a man.
To get a man of that sort who has possibly written something or composed a song and chase him down and find when he died and get the 50 years afterwards is more or less a hopeless proposition. The bill provides that the article may be published anonymously or pseudonymously. In that case you must go through the process of running down the pseudonym or fictitious name and find out the real name of the author. You have possibly three persons claiming to be the author and you have to wait for the 50 years after the death of all three. It seems to me it is not necessary to thrust upon the American public that haphazard scheme because the convention calls for it. We have the right to limit the period to what our local laws say by referring back to the 1886 convention. It seems to me we should do that and protect our own public. Article 7 of the 1908 convention contemplates this. It says in case this term is not adopted the duration of the protection shall be regulated by the law of each country.
Mr. BLOOM. Do you not think that the authors and inventors should get all the protection that we could possibly give to them so as to promote
Mr. FENNING. Not all you can give him.
Mr. BLOOM. Why not? It is his property, is it not?
Mr. FENNING. No; the property of the public. All this protection is not because it is his property, but for the advance of science and industry. You may give to him, under the Constitution, for 10,000 years the exclusive right, but you should not do it. The public are entitled to it some time. It must fall into the public domain. The bill mentions that.
What is the public domain? It is the consideration the public gets for the limited monopoly which it gives an author. Ordinary business intelligence would say make the period limit that you give the author a monopoly a limit sufficient to get for the public that benefit which comes when it falls into the public domain.
Mr. BLOOM. Are you not going to promote science by giving to these people protection, so that in the years to come, when they might have written one good book or one good play or invented one good thing, that he will get the pennies that will come in in after years as he does to-day!
Mr. FENNING. I am unable to believe that a man who produces popular novel has done any more good than the man who invented the vacuum tube for the radio. The inventor of that tube gets a short period of monopoly, after which the tube falls into the public domain. Why should not the popular novel do the same thing; or if it is a book of science, why should not we be able to place before the youth of this country 30, 40, or 50 years from now that book of science and give him a cheap edition, so he can get some benefit from it?
Mr. BLOOM. Why should not the author have the right to do it at once-publish it in the way he wants? He will sell it in the way he can get the most money; and if he can sell it better or to better advantage in the 5 and 10 cent stores, he will do that.
Mr. FENNING. Do they do it now?
Mr. BLOOM. Yes.
Mr. FENNING. Popular novels?
Mr. BLOOM. Popular songs; yes.
Mr. FENNING. Popular songs; yes.
Mr. BLOOM. Do they not get out cheaper editions of novels?
Mr. BLOOM. Why, 75 per cent of the books and novels and everything printed; you can buy the best stories in the Saturday Evening Post for 5 cents, and you get a dozen of them.
Mr. FENNING. That may be so.
Mr. BLOOM. Not may be so; it is so.
Mr. FENNING. Why should that be so for that same Saturday Evening Post in case of the death of the young man who has gotten his first story in there?
Mr. BLOOм. My idea is this: That I would like to see these people who write and create anything at all get all the protection they can possibly get for themselves and their families in the future. It is their property. That is my idea.