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STATEMENT OF THORVALD SOLBERG, REGISTER OF COPYRIGHTS
Mr. SOLBERG. Mr. Chairman, I was asked, after Mr. Fenning talked, in regard to the possibility of entering the International Copyright Union by accession, not to the convention of 1908, the final of the three conventions, ratified that year in Berlin, but by accession to the earliest convention, that of 1886.
The early convention provides, as Mr. Fenning, I think, read, in the second paragraph of article 2, that "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 can not exceed in the other countries the term of protection granted in the said country of origin."
Now, it must be conceded that that language, which seems fairly clear on first reading, implies that for a citizen of any country which entered the union to be protected in all the countries of the union and succeed to all the rights and privileges accorded by the articles of the convention, would only have to prove that he had himself, in his country, complied with the requirements and set up the protection within his own country. However, as there was a questionand it came into the courts in England-I will ask the permission of the committee to quote a few paragraphs from the work of Prof. William Briggs, of Cambridge, England, entitled, "The Law of International Copyright," which, up to the date of its publication in 1906, was undoubtedly the ruling work in relation to international copyright law.
Under the heading, "Can other conditions and formalities be required," the author states:
The original wording of the convention left open another matter of considerable importance. Article 2, paragraph 2, in exacting the accomplishment of the domestic conditions and formalities of the country of origin, did not say that no other conditions and formalities were to be imposed. Without breach of the letter of the law, therefore, a country granting protection was at liberty to require foreign works to perform registration, deposit of copies, etc., according to its own domestic rules. The intention almost certainly was that, once the demands of the country of origin were satisfied, every work should at once gain copyright throughout the Union. This, however, was not made clear.
Great Britain, at any rate, considered the question an open one; and, though Hanfstaengl v. American Tobacco Co., affirming Hanfstaengl v. Holloway, has for the time decided it in accordance with the almost certain intention of the convention, these cases, turning mainly on the interpretation of the English domestic law, give little insight into the English view of the effect of the convention. By its treaty of 1893 with Austria-Hungary, however, Great Britain is pledged to exact no further conditions and formalities for the protection of Austrian and Hungarian works than those of the country of origin.
In a new paragraph he continues:
The interpretative declaration of Paris has at length settled the matter by declaring that "with reference to the terms of article 2, paragraph 2, of the convention, the protection assured by the aforesaid act-i. e., the convention and the additional act-depends solely upon the accomplishment, in the country of the origin of the work, of the conditions and formalities which are prescribed by the law of that country." This rule now obtains throughout the union, for, though Great Britain has not accepted the declaration, it does not object to the provision in quest, with which its domestic law, as settled in Hanfstaengl v. American Tobacco Co., is quite in accord.
This, I may repeat, was written in 1906. In 1908 the convention was amended and the amended convention in article 4, provides that the rights and remedies accorded are to be secured without any conditions and formalities. We have a practical and near-by application of that provision of the convention in relation to Canada. Canada, in 1921, passed an act requiring not only notice and deposit and registration, but practically compulsory printing in Canada. It gave rise to considerable contention and did not become the law of Canada until the 1st of January, 1924. Immediately thereupon there was discussion in Canada pointing out that these provisions barred Canada's accession to the International Copyright Union. In an article contributed to the Publishers Weekly, by a wellknown Canadian, who however, does not sign his full name, it is stated: "It is obvious hat the injection of the licensee features render it impossible for Canada to conform with the requirements of the international convention," a construction opposite to the principle the chairman voiced in the Canadian association.
At the 1922 session of the parliament, a private member-and a member himself of the authors' association-moved to have the act proclaimed, but minus the licensee clause. His motion was not reached when the session ended. It is evidently the intention of the Canadian Government, having introduced the measure as a government measure, and having named a definite date on which the act shall come into force, to support the proposition of bringing Canada within the terms of the international convention. The Prime Minister, Hon. McKensie King, is known to be in favor of this act. Presumably there will be strong opposition from the printing interests who strongly advocated the present Canadian law, with the inclusion of the licensee clause in 1921.
In a subsequent article it is stated:
The object of the post office in putting into effect the Canadian act of 1921 is to allow the Canadian Government to secure Canada's adhesion to the revised convention.
Mr. BLOOM. There is a copyright bill that the Parliament is now considering.
Mr. SOLBERG. Yes, sir; but there is one intervening that I am just coming to now.
In June, 1921, a report was made by the copyright committee to the Canadian Authors' Association and this is a paragraph quoting from it:
This committee recognizes the disadvantage resting upon the Canadian printing interests because of the manufacturing conditions imposed by the United States, but submits that such disadvantages should not and can not ultimately be remedied by making Canada an outlaw nation in matters of copyright. They might be removed by negotiations which we hope the government will institute with a view to insuring the property rights of the author in his works in all countries as other property rights are now universally recognized.
In 1923 Canada passed a new act assented to, I believe, in June of that year. This act reads, in section 2:
That sections 13, 14, 15, and 27 of the copyright act of 1921-that is the one that went into effect January 1, 1924-shall not apply to any work the author of which is a British subject other than a Canadian citizen or to the subjects or citizens of countries which have adhered to the convention and the additional protocol thereto set out in the second schedule of the act.
That act went into effect, and thereupon Canada was received into the International Copyright Union. I think all this is fairly conclusive that there is no way of entering the International Copyright Union but to accept the articles of the convention of 1908, and I think I may say that it seems quite clear, under the statement of good authority that there can be no deviation from the articles of the convention in behalf of any country desiring to enter into them. That, however, is only an expression of opinion.
Mr. BOWLES. You think Mr. Fenning was not quite correct?
Mr. SOLBERG. I think the deduction from all this is that he is entirely wrong.
Mr. BLOOM. At present Canada is considering a new copyright bill?
Mr. SOLBERG. I understand so, but I am not informed authoritatively.
Mr. BLOOM. You have not seen that?
Mr. SOLBERG. I have been told it is intended to remove the compulsory printing, but what is the situation I do not know.
Mr. BLOOM. Let me ask you this question: You heard the previous speaker say that if this bill should be enacted into law that all the music that is in the public domain at the present time would come in under the heading of copyrighted music and would be removed, or everything would be removed, outside of the public domain and come into this provision of the law.
Mr. SOLBERG. Well, I think if that was quite a correct quotation of Mr. Fenning
Mr. BLOOM. It was not Mr. Fenning; it was the previous speaker (Mr. Brylawski).
Mr. SOLBERG. I did not hear that.
Mr. WEIL. He did not say that.
Mr. SOLBERG. I think that what he meant to say was that all foreign works by authors with the countries of the convention, in which there was a subsisting copyright, would be protected in the United States where they were in the United States before in the public domain. I think that should be answered in the affirmative.
Mr. BLOOM. You think the music and everything that is in the public domain to-day-that if we were to get into the Berne convention it would be removed from the public domain and come into the copyright union?
Mr. SOLBERG. Yes; I think so. I think the very purpose of the hearings has been to secure that. It has been secured in every country that has entered. But your bill attempts to safeguard any person who might have used the music before the date of entry, and, of course, that should be safeguarded.
Mr. BLOOM. If he had published it.
Mr. SOLBERG. Or used it in any way.
Mr. BLOOM. That is what I am asking you. The bill specifically says anyone publishing this music
Mr. SOLBERG. Hereafter.
Mr. BLOOM. No; at the present time; that if it is in the public domain it stays there.
Mr. SOLBERG. I can not answer it authoritatively, you understand; but my statement is that I believe that the subsisting copyrights
throughout the world, or practically the world, will be sacrosanct in the United States.
Mr. BLOOM. That provision in the bill would not apply at all? Do you think we could enact a law of that kind, that music now in the public domain, a person using it could not continue to use it?
Mr. SOLBERG. There ought to be a provision to safeguard their continuing use.
Mr. BLOOM. I am only asking the question
Mr. SOLBERG. But permit me to say that in my opinion it is very inconsequential; that it would, in my opinion, be but 1 per cent or one-tenth of a per cent.
Mr. BLOOM. But it prevents anyone else coming in and publishing it after the enactment of the law.
Mr. SOLBERG. Without the consent of the owner?
Mr. BLOOM. Yes.
Mr. SOLBERG. That is my opinion.
Mr. BLOOM. Then the moving-picture interests would have the right to use it?
Mr. SOLBERG. No; they would be safeguarded in the use they have made of it, and the provision in the bill is for a continuing enterprise. But whether that would include the public performance for profit, I think would be doubtful.
Mr. BLOOM. Supposing that a sheet of music, a popular waltz, or aria, or published by Schirmer or Ditson, and there is no copyright on it and it is in the public domain
Mr. SOLBERG. In the United States, of course?
Mr. BLOOM. I am talking about the United States. I have not gotten across, yet-but if I buy a piece of music that is in the public domain and I am a moving picture theater owner, in buying that music did I not buy the right to play it in my theater?
Mr. SOLBERG. No-after entry in the union?
Mr. BLOOM. Yes.
Mr. SOLBERG. I think you would be on notice to get consent. Do you agree with me, Mr. Weil?
Mr. WEIL. I agree fully.
Mr. BLOOM. I wish you lawyers would get together and let me know just where you agree.
Mr. WEIL. I want to say, as a matter of record, at this time that on the two points on which Mr. Solberg has given his opinion to your committee I agree with him entirely. I think Mr. Fenning's views voiced this morning are unsound, for the various reasons Mr. Solberg has voiced, and also the other views he has expressed on the record and also in regard to his statement as to the status of music after entering the Berne convention.
Mr. HESS. I want to say for the record that I concur in Mr. Weil's opinion.
Mr. BLOOM. If the music is an orchestration of an opera in the public domain, if this bill should be enacted into law and I am publishing that sheet of music, do you mean to say that I will not have the right, in buying that music, to play it without coming in under the regulations of the Berne convention?
Mr. WEIL. Yes. The publisher would have the right to sell copies of the music he has on hand because that would be a continuation
of an enterprise lawfully undertaken. But the purchaser of the music can not have the right to play that music because that would be a new enterprise not undertaken before the bill was passed. .Mr. GOODWIN. He has that on hand?
Mr. BLOOM. The selling price is all right; I am printing that and I have the plates.
Mr. WEIL. You would keep on printing if you had the plates. That would be a continuation of an enterprise lawfully undertaken. Mr. BLOOM. Now, Mr. Weil
Mr. WEIL. And that is the law in Great Britain when they passed their act of 1911. I think it was 1911. They had to put a similar section into their act for the purpose of working an estoppel or in the nature of an estoppel for the benefit of enterprises actually undertaken to be continued.
Mr. BLOOM. If I had the right to print that music and sell it, do you not think that with that right I could continue the same right that I had been using it for? I have a right to make orchestrations for it and have the right to produce that in the theater. Is not that the fact?
Mr. WEIL. As far as the orchestrations are concerned, I should say yes, because I think that would be part of the enterprise lawfully undertaken.
Mr. SOLBERG. For profit?
Mr. WEIL. For profit, yes, sir; and always provided that this bill were amended, because of the words "circulated and performed for profit "-the word "profit " should be taken out.
Mr. GOODWIN. You think each performance may be a separate enterprise?
Mr. WEIL. Yes, sir.
Mr. GOODWIN. If this person had that music as part of his repertoire and using it, say, for a year, do you think they would be estopped from continuing to use the music?
Mr. WEIL. I think that would be a continuing enterprise.
Mr. BLOOM. Talking machine companies-would they have a right to continue making records?
Mr. WEIL. If they had started doing so, I think they would have; in other words, the matter is a question of what the individual user has done not what the person who subsequently gets a copy from that individual user would try to do. Do I make that clear?"
Mr. BLOOM. Yes; but all the rights that go with the rights of music in the public domain at the present time-they continue?
Mr. WEIL. I do not follow your question.
Mr. SOLBERG. The right of continuing public performance?
Mr. BLOOM. The right to publish-to give them the right to print and sell orchestrations?
Mr. WEIL. Yes.
Mr. BLOOM. At the present time they have a right to do many things?
Mr. WEIL. Yes.
Mr. BLOOM. If you have the right to give them one right, to print and sell, do you not think we have the right to give them all the rights they have at the present time?