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rest would have a right to broadcast them at a special price. You do not approve of that?
Mr. KIRCHWEY. No, sir; I think anyone has a right to do as he pleases with his own property.
Mr. BLOOM. Is it not strange that you are the first representative of a newspaper that has ever appeared before this committee, outside of this gentleman, under radiobroadcasting, who has spoken for the newspapers, and yet this primarily concerns newspapers with their copyrighted material?
Mr. KIRCHWEY. Of course it is true people having the same interests reach diametrically opposite views as to what are their interests. Mr. WEFALD. The Hearst people always take the right side or claim they do?
Mr. BLOOM. I want that in the record.
Mr. KIRCHWEY. I am not advancing that claim here. I am simply discussing the proposition of radiobroadcasting and mechanical music. The newspaper and magazine publishers are not asking any special favors for themselves, except perhaps those who have radiobroadcasting stations of their own and may wish to exchange radio and other material with newspapers.
Mr. BLOOM. According to the Dill bill, if Mr. Hearst owned his own broadcasting station and wanted to broadcast some of his own copyrighted material, any other broadcasting station in the United States would have the right to broadcast, if he broadcasted it.
Mr. KIRCHWEY. I do not see why they should have that right any more than they should have the right to reprint copyrighted material.
I said in the beginning there were two provisions of the bill as to which I had certain revisions. One of them relates to a new subsection F, which has been discussed, for section 16. That would appear on page 18, lines 5 and 6.
Mr. BLOOM. Of the new bill?
Mr. KIRCHWEY. Of the Vestal bill; yes. It would come in after line 5 on page 18. The language of that additional proposed subsection has not been finally determined on between the parties at interest, but the substance of it would be a provision to the effect that publishers of periodicals-this is in the section, gentlemen, you will note, that relates to statutory damages for infringementit is along the line of the preceding section which has to do with innnocent infringement by printers. This would relate to innocent infringement by publishers, newspapers and other periodicals in the case of advertisements published in such newspapers or periodicals, where the advertisements contained infringed material of which the publisher did not have notice and could not reasonably have foreseen. In such case, the intent of the section would be that the only remedy against the publisher would be an injunction against further or continued infringements and that the party aggrieved should sue for damages, not the publisher, but the advertiser or advertising agency who is responsible for such infringement. It makes recog nition of the unquestioned fact that a newspaper or periodical publishing advertising matter is not able to ascertain in advance whether any article contains infringing matter. If he had to do that it would impose an onerous burden on him. That is the only object of that,
to put him in the situation that the printer is in in connection with infringing copyrighted articles. That is the same where a publisher had no interest in the thing advertised and was merely printing for hire, an advertisement.
The other proposed change relates to section 15 of the bill, which deals with the extended term after the expiration of the term under the present act, and there, again, the language has not been finally determined upon; but the substance of the change is, I think, acceptable the change which I have in mind-acceptable to the Authors' League, who are primarily interested in this section. As section 15 now stands, it would, as I construe it, as to works which have been created before the new law goes into effect, invalidate contracts. hereafter made, whereby the author grants rights beyond the initial copyright term and for the extended term. I am told by the representatives of the Authors' League that that was not the intention; that what they wanted to guard against is depriving the author of rights for the extended term under contracts which have been made by the author before this new law takes effect, and as to all such works, even works heretofore created, they are willing to give the author full freedom of contract to dispose of his rights to works under the extended term contract, provided he does it with his eyes open after the vestal law becomes a law. With that amendment I think that section will be substantially acceptable to the publishers generally, although I must, for the sake of perfect frankness, state that it seems to me section 15 is a compromise between exact justice and the practical exigencies of the situation. Section 15, particularly the proviso in the section, page 12, line 22, as I read that proviso, will in some instances take away from publishers-and this, of course, will affect book publishers more than it will periodical publishers rights which they have under existing law in cases where the author is alive at the end of the existing current term of the copyright; that is, at the end of the first 28 years.
Under the present law it is a well-known fact that there is frequently a grant to publishers of their rights in the work for the present copyright term, and they agree to grant such rights for an extended term. I believe it has not been decided under the present law whether that convenant can be enforced against an author if living at the end of the current term-28 years. It seems to be recognized that it can not be enforced against executors, widows, or children. The effect of the proviso is to remove the doubt in each case. The publisher having rights given to him under a preexisting contract can not proceed against the author, if living, and insist that the rights must be granted the publisher for the extended term. He can, however, if they fail to agree on the rate of pay, go before a Federal court and ask that court to make an agreement between the parties. I admit it is a situation where it is extremely difficult to do exact justice between the parties because the new law will change the length of term. I wish to call that to the attention of the committee for their careful attention as to whether anyhing can be done furher to enforce the sanctity of existing contracts between the parties. With that qualification I wish to go on record for my organization in favor of this bill.
I thank you, gentlemen.
Mr. OSBORNE. Mr. Chairman, before introducing Mr. Seligman, of Sullivan & Cromwell, who is another lawyer who sat with us in these conferences, let me say that with reference to Doctor Raney's statement this morning that certain sections were left out of the Vestal bill from the Perkins bills, Mr. Kirchwey has explained why some are left out and in some others the principle has been embodied into one section.
Secondly, as to Mr. Kirchwey's two specific suggestions in reference to amendments as to innocent infringement and as to the extended term, the Authors' League has no quarrel with those and has agreed with Mr. Kirchwey on those two.
On his last objection as to the controversy between the publisher and author, we have left it to the court to determine as to the rights of the publishers and also in the extended term where the author has parted with his rights in the subsisting term we can go into that later. Mr. BLOOM. Section 15, you mean?
Mr. OSBORNE. Yes, sir.
STATEMENT OF MR. EUSTAVE SELIGMAN, REPRESENTING THE NATIONAL BOOKSELLERS ASSOCIATION
Mr. SELIGMAN. Mr. Chairman, in view of the lateness of the hour and the great knowledge which I am sure this committee already has of the subject, I am going to cut out the speech I purposed giving and eliminate extended remarks and simply deal with one or two important points.
The CHAIRMAN. That is right; go right to it.
Mr. SELIGMAN. I do wish to say, in a general way, that I think, on behalf of the publishers, that this bill represents an attempt on the part of all parties concerned to get the authors into the Berne convention, and in order to achieve that result I think all parties have given up something that might be deemed within their actual rights and justice. I think all have done that, even the Library association. I think the publishers have done the same.
The point that Mr. Kirchwey just referred to was practically a concession on the part of publishers for the sake of harmony. You can not get your 100 per cent in these things; you have to be reasonable. We feel they were reasonable and that we were reasonable. As Mr. Bloom has suggested, the whole question of the Berne convention involves a reciprocity in connection with getting an international copyright. A great many lawyers hold up their hands in holy horror and say, "What shall we do? It is giving up the system of registration that we have had and adopting rules applicable to conditions obtaining in Europe," and our answer is, to get into the Berne convention we have to sacrifice some things for the sake of the general good.
There has been one point, I am sorry to say, we have been unable to meet on, although we tried to be fair and approach it in the same spirit, and that is the library question. I want to leave a point in your minds on that. Possibly there is some confusion as to just what the bill proposes. We might very well have asked if there is an American edition published, and that could be bought as cheaply as the English edition, that that must be done. I think there is a
lot to be said in favor of that, but we do not ask for that. We recognize that there was great persuasiveness in the argument of the scientific gentlemen you heard this morning, that librarians and scientists, for reasons they understand and the layman does not, may particularly desire to have the English edition in order to see how the commas appear, etc., which the layman does not understand. We have recognized that, and we have not said that you must buy the American manufactured article if it is sold at the same price. What we have done is simply this: We have said to them, "If you insist on buying an English edition, you have got to buy it through the American publisher who is manufacturing the American edition, provided he will sell it to you at the same price." The question is immediately developed, why, having made the compromise we did, why not go the whole way and give them everything and say, "You can go to England and buy any books you desire. That was Mr. Raney's position this morning.
I think we have two perfectly fair and just reasons for not going further. In the first place, this library importation is a very big matter, far greater than most realize. There are 7,000 libraries in the United States buying books all the time. It is hard to get the figures on importations, because the importations, duty free, are not wholly limited to libraries. There are included in that, old books and books in foreign languages.
Here are the figures of the importations for sale in 1913. The importations for sale in 1913 were $1,700,000 and in 1924 $1,900,000. The importations, duty free, in 1913 were $1,300,000 and in 1924 $2,900,000, a tremendous increase in the importations duty free which I believe is almost altogether ascribable to library importations. I can not be sure of the figures, however.
The point of view of the American published is this: There are a great many textbooks which have not the appeal a novel has and are more serious and such as libraries want. It is to the interest of American education generally and American publishers and libraries and printers if we can get those editions manufactured in this country, and the only way we can get them manufactured in this country is to try to get the libraries with their tremendous buying power to buy those editions, and if the libraries will buy them, we can depend on what we call the high-brow class of America also to buy them, and the best way to get them to do that is to compel the libraries to do so. We do not think that is fair, but we think, by making the American libraries purchase English editions through the American publisher, it will give the American publisher a chance to write back and say to the librarian of Oshkosh, for example, "you can, if you want, get this original edition in England, but we have an American edition costing 20 cents less. Won't you buy that?" We hope we will be able to persuade them to buy the American manufactured article. We do not want the right to force them to do that, but simply want the privilege of attempting to persuade them, and that is the reason we ask for the clause to remain in and do not want to concede any
The other reason is this: You all know what bootlegging means. I should like to suggest another term-booklegging. There are a great many books coming into this country, sent in under the name
of an individual, ostensibly for private use, which go into the small bookstore and are resold under a clear violation of the present law and would be under this law. You see, this applies equally to individuals. We have felt the libraries are not the only people to consider. The individual or scientist who wants to get an original edition published in English has a right to do it. That right, however, is abused frequently. I know many publishers doing that all the time-sending for editions of copies of English books and reselling them in the open market. The only way we think you can stop that booklegging practice is by handling it through the publishers. Therefore, if I, as an individual, want to get that book, I have to get it through the American manufacturers who bring out the American edition. Yet, as a matter of fact, if I am not an individual with a private library, but I am really a clerk in some store downtown, that publisher is going to know it and will break up the game.
So, with these two justifications, we think we are entitled to ask for this very limited restriction upon the rights of the libraries. That is the affirmative reason why we ask for it.
Coming to the other side of the question, is it such a severe restriction upon the rights of the libraries? I pointed out to you— although I think some of the gentlemen who spoke this morning did not appreciate it-we are not preventing them from buying the original editions. Consequently, all of this limitation applies only to English books. All the scientific books that these gentlemen are interested in in other languages are not involved and the danger that we are going to fall behind Germany because we do not get a new book on chemistry two weeks earlier than we would otherwise, is not there.
Mr. WEFALD. Why are these libraries so English in their sentiment?
Mr. SELIGMAN. That is one of the mysteries which I personally have not been able to solve. There seems to be apparently a very long-standing feud between the American publishers and the American libraries, and I can not make out the reason. I think the reason is that the libraries find that the American edition costs more than the English edition. The reason we all know. So, they get angry at the publisher because the American edition costs more, and they think the American publisher is trying to do them and make higher profits, and there is the basis, I think, for the hostility. I really do not know of any valid reasons.
However, as I said, this limitation only applies to the English books, anyway. Consequently, on the question of scientific books, I do not think it is nearly as serious as these gentlemen think it is, because the whole restriction applies only to a case where there has been brought out in the American market an American edition; that means an edition manufactured in this country. To bring out an edition you have to sell 1,000 or 1,500, and, taking the type of book the gentlemen are talking about, a scientific book, there is not a chance in the world of there ever being an American edition of that type of book. You could not find 1,500 people to read it, unfortunately. So, the whole class that the thing rounds down to is the class of American books of educational nature which are not so serious as to have a public appeal and which the American pub