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The CHAIRMAN. That is on page 10!
Mr. LUCAS. On page 10, line 8.

Sections 16 and 17, beginning in line 17 on page 13, cover the penalties for infringement, and there is where we feel particularly that the provisions of this bill are drafted for protection of book rights and do not fit into all of the component copyrightable parts of a periodical. Before I take up the general features of that, I want to refer again to a correction that I think should be made on page 15, line 12, which is a part of this section. There appears the word “newspaper," in connection with unauthorized reproduction of copyrighted photographs. We feel that after the word “newspaper should be included the words “or periodical,” because the publication of periodicals is in general similar in conditions to those surrounding the publication of newspapers, and we feel that that would give ample protection for any infringement under that clause.

In regard to general penalties, the provisions as to which begin in line 21, on page 13, the bill provides that the infringer shall be liable “to pay such damages to the owner of the right infringed as he may have suffered due to the infringement,” together with all the profits that may have been made.

In connection with the periodical, with so many component parts, it would be absolutely impossible for anyone to determine the extent of the profits, and possibly even the extent of the damages. Therefore the one infringed would undoubtedly turn to subsection (c), beginning in line 4, on page 14, which provides for specific amounts. It makes the statutory amount a maximum of $5,000 and a minimum of $250. Many infringements or alleged infringements might not have any real value. They might have a small value. But this assesses a minimum of $250, regardless of any adjustment of that feature, and in case of some of our periodical publications where they might infringe in the way of using a paragraph, a quotation, or a part of a picture, or a part of a design, they have not created any damage to the extent of $250; but under this no judge can give less damages than $250.

Mr. MCLEOD. Do you not think that brings in the fact that there is a real penalty included for the infringement by fixing a minimum?

Mr. Lucas. I will refer to a case where the publisher might be innocent in the infringement. In the case of a periodical practically all infringement actions would be for cases of possible disputed ownership of copyrighted matter as between two authors or two artists.

Mr. McLEOD. But there is a way to arrive at that, as to whether you are infringing or not. That is correct, is it not?

Mr. LUCAS. No, there is no way to tell whether we are infringing on a picture in an advertisement we might run.

Mr. MCLEOD. You say there is no possible way.

Mr. Lucas. No possible way. We would be absolutely innocent infringers, if there is an infringement; unless we wrote the copy of the advertisement and made the drawing.

Mr. McLEOD. Do you not think if there was not a specific minimum for infringement there would be many cases of infringement?

Mr. Lucas. There might be more, but I am questioning the size of the amount. I think undoubtedly it is very possible, if that


amount is correct in connection with a book, it is not proper in connection with the infringement of a small item in a periodical.

Mr. McLEOD. And that is what you want changed.
Mr. LUCAS. We insist that it should be modified.
Mr. McLEOD. Are there many hardships under the existing law?

Mr. Lucas. There are. At the present time there is blackmail being used on this $250 minimum. I know it is the case with some of our publishers. Mr. McLeod. It is not a great minimum, is it? That is what I

I was trying to get at.

Mr. Lucas. It is not, but it is far in excess of the damage done. Mr. McLEOD. In many cases?

Mr. LUCAS. Yes. Now, there is a further question in connection with the periodical publication in the latter part of this paragraph. This provides that this maximum of $5,000 and the minimum of $250 will not apply where notice of infringement has been served. Taking the case of a weekly publication, we might have bought the serial rights for a story that will run in five, six, or seven issues of this weekly publication. The first issue comes out, and we are immediately served with notice that we are infringing, and that notice is due to a dispute between two authors as to who really owns the copyright. The publisher is innocent so far as that feature was concerned. The notice is served. Now, the question is, Would that maximum and minimum apply to the one copy--that is, one issuethat has just come off the press and been distributed, or would it also apply to possibly five other issues that are at that time actually in process; and if not would the penalty provided in the second section, in line 20, apply, which is $1 per copy? That is on page 14. In the case of one of our largest weekly publications we have 2,500,000 copies per issue; and if we had five issues in process there would be a total of 12,500,000 copies. Of course, it would be ridiculous to assume that such a penalty would be placed on any infringement; but there is a question in my mind as to the application of the law. As I say, I am not a lawyer.

Of course there is a provision up here that gives a disci etion to the court, but nevertheless you would have a maximum down here in lines 6 and 7, as Mr. Weil has suggested there; there is a certain discretion left with the court.

Mr. BLOOM. Mr. Chairman, I would suggest that Mr. Lucas have amendments offered to the committee with reference to these things, so that we would know how we can give him the protection that he ought to get. Mr. Lucas. Mr. Chairman, there is one feature about that. I

I feel this way. I feel that where you are considering a specific law, a specific bill, and someone has an objection, possibly they should word their suggestions as to how it should be changed; and then I feel also that in a hearing of this kind you are after facts as to how any kind of a law will affect the people that are interested in it, and that is really what I am trying to give you now.

The CHAIRMAN. I think you are perfectly all right in that; but of course if you desire to offer any amendments—the people you represent—the committee will be glad to consider those also.

Mr. Lucas. But in that connection I would like to say this, not in criticism at all of the Authors' League, but I feel that this bill as presented has taken care of a great many objections that have been given to them. We have not had opportunity to give all our objections to the bill in time that they might have gotten into this bill, in order that their lawyer, even if he approved of them, might write them out. Therefore, we have come here, not in criticism of the Author's League, but to show them where we think the bill is wrong.

The CHAIRMAN. In other words, are you opposed to the entire bill?

Mr. Lucas. As it stands, we have to be. If modified, of course it would be different. In the bill there are certain things represented here that it would be advisable to change.

Mr. McLEOD. But you have no suggestions?

Mr. Lucas. No, but we are showing the committee how the changes proposed by the Authors' League will result in hardships that even the compilers of the bill never intended.

Mr. BLOOM. If you would have your people write out the amendments that would right these wrongs, we would be able to get somewhere.

Mr. Lucas. I will give you one suggestion for that right now, Mr. Bloom. One principal objection we have to this bill that we did suggest to the Authors' League, in connection with this section, is what is known as the innocent infringement clause, in connection with the advertisement matter.

Mr: OSBORNE. That is conceded. Mr. Lucas. I am glad it has been conceded; but that was one case where the matter was brought to the attention of the Authors' League months ago and a full detailed worded statement was made of a proposed section on innocent infringement. They have put in the bill an innocent infringement clause on the moving picture industry, and one for the printer, but we are merely a medium of the advertiser, serving in exactly the same kind of a situation, and we have not been put in.

Mr. McLEOD. What was that suggestion you offered to this?

Mr. Lucas. It was a clause somewhat similar to paragraph (d), beginning in line 10, page 16, and paragraph (e), beginning in line 7 on page 17, and I will read into the record at this time the proposed innocent infringement section.

Mr. McLeon. Where would you have that go into the bill?

Mr. Lucas. Before (d) or after (e); or you might make it subsection (f), which would be inserted after line 5 on page 18. Here is the way that would read. [Reading:]

(f) In the event that any advertising matter of any kind carried by a newspaper or periodical shall infringe the creation of an author, where the publisher of the newspaper or periodical shall show that he was not aware that he was infringing and that such infringement could not reasonably have been foreseen, the person aggrieved shall be entitled only to an injunction against future infringement and against the continuation or repetition of such infringement in future issues of such newspaper or periodical, but shall not be entitled to any profit made by such publisher from his contract or employment to carry such advertising matter.

Mr. McLEOD. You go a little further than the other people desire in their requests for exemptions on infringing penalties.

Mr. Lucas. In what way?
Mr. McLEOD. You allow those some recourse.

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Mr. Lucas. There is plenty of recourse. I have not finished this.

Mr. McLEOD. You say in the event they shall be subject to a penalty if they continue after notice has been served.

Mr. Lučas. That is, the publisher.
Mr. McLEOD. The publisher.

Mr. Lucas. There is plenty of protection in this article for the infringed. [Continuing reading:] nor to damages, actual or statutory, against him: Provided, however, That this clause shall in no wise limit the remedies of the person aggrieved against the advertiser, advertising agency, or the person or corporation responsible for the infringement: Provided further, That if the publisher of the newspaper or periodical is in anywise interested in the commodity or subject matter advertised, or is the advertiser, or advertising agency, or is regularly engaged in business with the advertiser or advertising agency in such wise that the publisher is entitled to any profits from the sale of the subject matter advertised, or from the handling or placing of sucb advertising matter (other than profits derived by the publisher merely from his contract or employment to run such advertising matter in his newspaper or periodical), then such publisher shall not be deemed an innocent infringer of said creation, and shall be subject to the provisions of this act relating to infringement and the consequences thereof.

That fully protects the person infringed upon and gives him recourse against the person who actually caused the infringement.

Mr. BLOOM. In other words, you want to lay the blame and the claim for damages at its source ?

Mr. Lucas. Right where it belongs.

Mr. Bloom. Now, Mr. Lucas, you spoke before with reference to the publications that are in printMr. Lucas. And in process. Mr. Bloom. Yes. Now, you have not mentioned that.

Mr. Lucas. There is a question whether that ought not even to be modified.

Mr. Bloom. If you are an innocent infringer and your paper comes out, we will say, on the 1st of January, and you have already in process of printing, or even already printed, the February 1 issue

Mr. Lucas. Take a weekly, where they might have four issues in process.

Mr. Bloom. Yes; how are you protected in this amendment in a case of that kind ?

Mr. Lucas. There should be a provision made for that. There is no protection there.

Mr. Bloom. I think that is the most serious thing with reference to the publishers of books, newspapers, or periodicals of that kind, and I think an amendment of some sort should be put in there so as to protect them.

Mr. Lucas. The question would be when the infringement was committed. For instance, if we have an advertisement that is an absolute innocent infringement so far as the publisher is concerned, we might have

Mr. WEIL. Might have.
Mr. Lucas. Actually have.
Mr. WEIL. You do not like that, do you?
Mr. Lucas. I thought you suggested a change there.

Mr. WEIL. I did not say that. Anything that satisfies Mr. Lucas and his association on that point is certainly satisfactory so far as I am concerned.

Mr. McLEOD. But if you are going to satisfy Mr. Lucas on that point, there are three sections that come before that. There is a penalty fixed.

Mr. Bloom. He is not relieved of his penalty.
Mr. McLEOD. He would be if this was admitted.
Mr. Bloom. If his amendment were adopted.

Mr. McLEOD. Then you would have to strike out the $250, because he could be considered as an infringer. Mr. Lucas. This only refers to advertisements.

Mr. WEIL. So as to answer Mr. Bloom, I will say I am not criticizing this clause.

Mr. Bloom. I thought you thought I was giving him too much, which is extremely unusual.

Mr. WEIL. No; on the contrary I think he is extremely modest.

Mr. Bloom. Then with that you would have no objection to that language?

Mr. Lucas. I am not through yet. I have some other objections that I think should be considered; but I really believe that that point should be brought up. There is a question as to when infringement actually occurs. Take, for instance, a weekly publication. When one issue comes out and is placed on sale it may have an advertisement in there that infringes, innocently, somebody's right. At the same time, that publisher has in process two or three or four or even five other weekly issues. Now, the question is, would this apply only to the one issue or would it apply to all five of themexempt him as to all five of them-because they are in process and it is really one situation so far as that is concerned, up to the time he has been notified ?

Mr. McLEOD. How would you amend that?

Mr. Lucas. There would have to be a clause put in there defining when your infringement occurs.

Mr. McLEOD. It would be pretty hard to determine.

Mr. Lucas. Very hard to determine, but that is where I say again your bill is intended to protect one copyrightable item in a book, and the situation with reference to the publication of books is very different from that with reference to periodicals. Of course, I admit there are other copyrightable features in here now, but these general features are based on that one copyrightable feature.

Section 17 is still a part of the penalty, and on line 7, page 18, it indicates that the infringer would be further liable for the impounding during the pendency of an action for all of the infringing copies. In case of a book that could be possible, but in case of a periodical that must be issued it would be absolutely out of all reason for the publisher to have all of those issues tied up during the pendency of an action. Therefore I would have to object to the application of that, as worded, to periodical publications.

Next, on page 28, beginning on line 19, section 34 brings out the fact that no notice of copyright is necessary on any copyrighted matter. I have already referred to this feature, and we feel that it is absolutely necessary that all copyrighted matter necessarily should

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