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out certain clauses and they want amendments made in this law. You have a committee before you to-day from the radio industry, which is doing a business of $5,000,000 a year, contesting the rights of authors and composers, and these gentlemen will come in and tell you so.
I sincerely trust that you will remember the request I am making of you, not alone for the writer of today, but for the writer of the future, so that the future Sousas, the future Nevins, and the future Herberts will be protected in their work. Because, whatever you gentlemen decide, you certainly must see the importance of it by the tremendous interests that have been involved since you first began to hold copyright hearings a little over two years ago; you must know how vital it is, this subject, when these men come, hour after hour, day after day, no matter what side they appear on, the tremendous interest in this subject and the tremendous need of some constructive piece of legislation to take care of everybody in fairness and equity.
I want to tell you gentlemen how much I appreciate your patience; and to indulge the hope you will give us some consideration when your final deliberations are reached with regard reporting this bill out, which I sincerely hope you will do, and, gentlemen, that is a plea ; that is a plea to report a bill out that will give everybody some assistance, even the opponents of this bill. Let us know one way or another. It is an appeal that something should be done. You have here men from every walk in life, who stand up and tell you, looking you in the eye, some more ably than others, that this is a vital thing affecting them and thousands of others, and there certainly is the deep need and important need of some constructive legislation to take us out of this chaotic state that we are in to-day. I thank you very much, gentlemen. [Applause.]
Mr. OSBORNE. Mr. Chairman, Karl W. Kirchwey is counsel for the Hearst organization of newspapers, magazines, books, and motion pictures. He is one of the lawyers who sat with us in the conferences that were held since last year's committee rose from the Perkins bill. I desire to have him heard in support of the bill.
STATEMENT OF KARL W. KIRCHWEY, COUNSEL FOR THE HEARST ORGANIZATION OF NEWSPAPERS, MAGAZINES, BOOKS, AND MOTION PICTURES
Mr. KIRCHWEY. Mr. Chairman and gentlemen of the committee, Mr. Osborne has told you that I have participated in the conferences which led up to the making of this copyright bill that is now before you, known as the Vestal bill. I commenced last spring, when, on the call of your committee, the various interests concerned gathered together in New York to see what could be done to reconcile their differences and bring some proposed piece of legislation out of their deliberations, and, in view of the nature of the interests which I represented, I was privileged to participate in various groups that were considering quite a variety of problems presented by the proposed legislation. There were others, of course, who represented much larger interests then I, but it so happened that the Hearst organization, through its manifold activities, was interested in the provisions
of the bill which affected book publishers, publishers of magazines and newspapers, and motion-picture producers. Consequently, I took more or less part in the deliberations relating to all those related subjects.
I did not have a part in the final drafting of the bill, but when it was placed in my hands I found so little in it I would wish to change that, after conferring with my clients, I was very glad to be authorized to come down here, subject to one or two minor changes to which I will call your attention later, to register the support of the Hearst organization for the Vestal bill.
As you know, the basis of our deliberations in the beginning was the so-called Perkins bill, and your attention was called this morning by Mr. Raney to certain omissions from the Perkins billcertain sections not included in the Vestal bill. I shall not attempt to deal with all of those. Some of those relate merely to questions of draftmanship, as to which I defer to those more experienced than I in drafting legislation of this character. But a few of those suggestions were left out in part, at least, as a result of my suggestion or urgence or insistence, and it might be well to explain what my objections were in those sections.
I refer to sections 6, 13, 22, and 36 of the Perkins measure. All four of those sections which I have enumerated relate to the rights, under the copyright law, of the publishers of magazines and newspapers. Section 6 is somewhat typical of them all; so I shall read it. It says:
The publisher of a newspaper or other periodical shall be the first owner of the general copyright therein: Provided, however, That in the case of any literary or other contribution therein the author thereof shall be the owner of the copyright, and, in the absence of agreement to the contrary, he shall be deemed only to have licensed the publisher to print and publish said contribution.
Section 13, along the same line, says: The copyright provided by this act shall protect in the case of composite works or periodicals all the copyrightable component parts of the work copyrighted, and all matters therein in which copyright is already subsisting : Provided, however, That the publisher of a newspaper or other periodical shall, in the absence of an agreement with the author to the contrary, secure only a license to print and publish in such newspaper or other periodical such author's literary or other contribution contained therein.
Section 22, along the same line, deals with the duration of a copyright and says:
The general copyright secured under this act by the publisher of a newspaper or other periodical shall inure for a period of 50 years from first publication: Provided, however, That unless there is a specific agreement to the contrary, the right of periodical publication in any literary or other contribution published in such newspaper or periodical under the provisions of section 13 of this act, shall, after such publication, revert to the author thereof, and shall continue during his life and for 50 years after his death.
But worst of all, from our point of view, was section 36, which provides :
The publisher of a copyright newspaper or other periodical shall, as the first owner of the general copyright in such work, have the right to sue for infringement of the copyright, including infringement of any copyrightable component parts thereof, except where, under the provisions of section 13 thereof, such publisher and owner has acquired from the author only a license to print and publish his literary or other contribution.
I can only interpret those four provisions, gentlemen, and I could only interpret them, as giving, in the absence of an expressed agreement to the contrary, the publisher of a newspaper or other periodical, a bare license to print or publish once in that periodical any contributions appearing therein and depriving him of any remedy under the copyright law for infringement in the event some other periodical should violate his exclusive right of first publication which the author of that work had given him, and further more, I could construe those provisions as taking publishers of newspapers and other publications out from under the general employer clause of the law, in reference to their rights in case of an infringement; that in the absence of an express agreement to the contrary, a publisher of a periodical only acquired from employees or reporters for hire, a bare license to print but once their contributions, and thus depriving that publisher from any rights for infringement.
The Hearst organization, as publishers of newspapers and magazines, seeks no preferred treatment. It is quite willing to come in under the general provisions of the Vestal bill seeking no favors, but it does seriously object, as other publishers of periodicals and magazines would seriously object if it were called to their attention, to discriminatory legislation by which Congress would attempt, through agreement between private parties, to attempt a statutory construction putting periodicals and newspapers in a disadvantageous position as compared with other publishers.
I might say that when I called that to the attention of the representatives of the Authors' League, they were quick to see the objections which I raised and were frank and willing to modify it and to remove that very apparent discrimination against newspapers and periodicals. That is the reason, gentlemen, why those provisions are not in the Vestal bill. If they served any purpose in the Perkins bill at all, their ostensible purpose was to protect the authors and writers. The authorized representatives of the authors and writers have been fair-minded enough to see they do not require and should not have any such special protection against newspapers and periodical publishers and so they do not appear in the Vestal bill.
We are in favor of the passage of the bill as it stands for a number of reasons, many of which have been called to your attention very clearly and ably, so I will just touch on them in brief. We wish the United States to come into the Berne convention and to secure for this country for the authors and publishers as well, the advantages of an international copyright. The benefits have been pointed out that will result in protecting American authors in foreign countries. It will also work the other way, and that will be an advantage not only to foreign authors but also to organizations here which wish to deal securely in the works of foreign authors.
There comes to my mind an instance that occurred in my own practice where a client of mine engaged in the motion-picture industry sought to purchase the exclusive motion-picture rights to a work of fiction published first in England under an English copyright and later published in this country. This client purchased and completed the purchase abroad, from the author of the world motion-picture rights, unfortunately failing to search the records of
the copyright office here before making such purchase. Upon having search made it was discovered although the work had been published in England subsequently and published by a reputable publisher with notice of the copyright in this country, and although the rights remained in the author from whom my client purchased, notwithstanding the American publisher having failed to comply with the requirements of the American law within six months of the first publication abroad, the work in this country was in the public domain, so that the rights acquired for the United States by my client were worthless. Fortunately the author from whom we purchased was a person of repute and standing who upon this being called to her attention consented to pay back the purchase money to the purchaser, but the purchaser would not in all cases be so fortunate.
We believe in the provisions of the law giving a copyright upon the creation of the work and making registration optional. Some criticism has been directed at the optional registration provisions in this bill and that is a matter which your committee will doubtless wish to give careful consideration to because it is a radical departure from the present law. Nevertheless, I think, and it is my own belief, that these objections and dangers that have been pointed out are more apparent than real; that, to secure the fullest protection under the law, the authors will, upon publication, at least, or upon any public rendition or performance of their work, feel obliged to register, in order to secure that full portection which is only accorded against so-called innocent infringements to duly recorded works. I am sure I will advise clients of mine, when this law goes into effect, to register as they have done heretofore.
We are also favorable—and this to me is one of the most important features of the new measure—to the provisions of the law which have tightened up the existing provisions for the recording of assignments and which has made licenses and assignments all recordable and have applied the same provisions to both. Under existing law there is continual difficulty, particularly on the part of motion-picture producers; first, as to how to secure an accurate search so that they will know where they are purchasing motion-picture rights to à published work that the person who is selling to them actually owns those rights, and, second, after so purchasing the rights, to place their assignments, so-called, on record so as to secure protection against the whole world. The courts, I believe, have held or have intimated that a mere grant of motion-picture rights is not a copyright assignment but a license and is not a recordable instrument under the law. There is, of course, no sound reason for any such distinction as the law has been interpreted. Of course, at the time the law was passed, the motion-picture industry was in its infancy.
This is a very genuine difficulty, as will be pointed out by the motion-picture producers-a genuine difficulty in securing a clear title, and these provisions of the law have been designed to make the recording of an assignment, a license under the copyright, and place them on the same basis as the recording acts place conveyances to real estate so that when some one acquires from the copyright proprietor any right included in the copyright, he must, in order to protect himself against innocent infringers, place that assignment on record and that puts subsequent purchasers in a condition where they can go to the record of the copyrights and rely on those records as constituting a statement of the record at the time they purchase, and that will make for certainty in purchases.
We are particularly favorable to the provision of this law making a copyright divisible into as many different rights as are included in the copyright and enabling each purchaser of a given right to come into the Federal courts and sue under the copyright law to protect the exclusive rights which he has acquired from the copyright proprietor. I see no reason why he should not be in that position, and the proposed law will remove a great state of uncertainty under the existing law as to the rights of such assignee or licensee.
In brief, we approve of this law because it increases the protection accorded to the authors and creators of works and makes for certainty to all others who acquire from authors, so that they will know exactly what they are acquiring.
We approve of the law in its present form as far as the radio and mechanical reproduction features are concerned, first, because we believe in principle exactly as Mr. Buck has stated, that there is no reason on earth for depriving an author of the right to dispose of his property as he sees fit; that it is not the function of Congress or any legislative body to fix the price at which an author might sell his works or any rights included in his works; that that should be a matter of private bargain between the author and the prospective purchaser.
Mr. Bloom. You are talking about these rights in radio and mechanical instruments ? Last week there appeared before the joint committee of the Senate and House on the radio broadcasting matter a gentleman who claimed he represented 500 different newspapers in the United States and he stated that his organization would go on record and approve what the broadcasters are trying to do with reference to the compulsory licensing of radio broadcasting, copy, righted articles of newspapers. Now, you do not agree with that statement?
Mr. KIRCHWEY. I do not, sir. I do not know who the gentleman was and do not know what he represented, but I know the Hearst publications have taken the opposite view. They have taken the view that radio broadcasters have no better right to take a man's rights at a compensation not fixed between the parties, but fixed by Congress—I do not claim that they are wholly altruistic in that. They feel if the door is once opened to permit the radio industry to take copyrighted music and use it that they are apt to use copyrighted literary works the same way.
Mr. Bloom. If we take section E of the present copyright law, which applies to music and songs, and amend the law so as to add section f which the broadcasting people are trying to insert in the law, then they would come back and ask that section D which applies to all your copyrighted articles and applies to Associated Press articles or anything printed in any newspaper, that they should have the right to broadcast that, provided anyone else broadcasted it; in other words, if Mr. Hearst owned a broadcasting station and wanted to broadcast his own copyrighted articles, all the