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Mr. WEIL. No; I do not see how, under the circumstances, you can very well close the door in reference to third parties of which the copyright owner has no knowledge whatever and can not foresee to what use the music can be put in the future. But drop music for the present and you will see what I mean. Take a novel; there are certain rights in connection with that novel. The publisher has a right to publish it and sell copies, but in addition to that there is the right of dramatization and the motion picture rights and, conceivably, there might be subsequent serial rights.
Mr. SOLBERG. And rights of translation.
Mr. WEIL. And rights of translation. If those rights have not been utilized, nobody can complain because they are still in the author. That is a matter to be determined. A publisher could continue his enterprise, but the mere fact that he had the right to publish would not imply that he had the right to grant the right of dramatization of it.
Mr. Bloom. He has at the present time.
Mr. Bloom. If I have the right to publish and sell, why should not the right continue for production rights?
Mr. WEIL. Because I think, under the language of the Berne convention, countries like Great Britain who adopted the estoppel law, went the limit of the Berne convention that they could pos
Mr. Bloom. Do you know what section that is in reference to the rights of continuing publications? Mr. WEIL. You mean the English publications?
Mr. Bloom. In this bill. Would the Victor Talking Machine Co. have the right to transfer
Mr. WEIL. It is section 63.
Mr. Bloom. Would the Victor Talking Machine Co. have a right to transfer their rights?
Mr. WEIL. It is section 63, line 19. I wish you would not put me in a position of advising any particular individual as to their rights.
Mr. Bloom. Very well, leave the Victor people out. Would anybody making a record or roll of noncopyrightable music have the right to sell that business and some one else continue it? Mr. WEIL. Oh, yes; I think so. Mr. Bloom. That is section 63 ? Mr. WEIL. Yes, sir; near the end, on page 44, in line 19. Mr. Bloom. Mr. Weil, on page 45, lines 12 and 13– Mr. WEIL. Yes, sir. Mr. Bloom. What does that "performance” mean?
Mr. WEIL. Performance prior to such date. Look at line 2 and you will see what it means.
Mr. Bloom (reading):
Shall not be entitled to bring action against any person who has, prior to such date, taken any action in connection with the reproduction or perform
Mr. WEIL. That is, prior to the date of admission into the union.
Mr. Bloom. Then, that would put all of these people out of business.
Mr. WEIL. That is a big order. I think the percentage would be very small, indeed.
Mr. Bloom. You are opposed to entering the Berne convention?
Mr. WEIL. Oh, no; I did not say that. I only got up this moment to express my opinion as being the same as Mr. Solberg's on the two specific points. With your permission, I shall reserve my remarks as to whether we should enter the Berne convention until my regular order.
The CHAIRMAN. Is there any other person who wants to be heard in opposition to the bill ?
STATEMENT OF J. G. PAINE, REPRESENTING THE VICTOR
TALKING MACHINE CO.
Mr. PAINE. I approach this subject, Mr. Chairman, in exactly the same spirit as Major Putnam approached it on behalf of the Authors' League. If you recall, when Major Putnam appeared before the committee he stated that he felt that the United States should take its place among the civilized nations of the world and join the Berne convention, and then he stated that he wished the committee particularly to regard the rights of the American public; that so far as the convention affected those rights—the matter of importations, for example—he felt that the American publishers should be safeguarded.
Now, we believe that you ought to join the convention if it does not affect the talking-machine industry in any way, shape, or form.
Then, Major Putnam also stated that he believed that the rights of the author should be the paramount consideration of the committee and that no one should be permitted to usurp those rights unless they gave just compensation to the author. But he also called your attention to the fact that there was a renewal period in the present copyright law and in that renewal period the author got back his rights, and when he got back his rights he was enabled to charge a penalty charge for the publisher continuing to publish the work, and opposed anything in the law that would give the author the right to impose a penalty charge on the publisher; that anything in the law permitting the author to charge that penalty rate was a mistake, and in that spirit we approach this proposed law.
I might, however, if I may be permitted to interrupt with just a little digression, tell you about my dog. I have a dog that I am very fond of, an Airedale, a very splendid animal. I think the world and all of that dog, and so every morning I rise early to let him out to have a run. Our neighbor has a cat, and when the dog steps out the cat usually spots the dog and ruffles her fur and enlarges her tail and arches her back. The dog rushes after the cat pell-mell and the cat dashes away and jumps into a place of safety, and the dog very proudly goes into the house and comes up to the bathroom where I am shaving and looks up to me and says, “What the hell, Bill?”
But the other morning, when I let the dog out, the sun was shining in exactly the same position and the cat was in the same position, and the dog spotted her and ran up to her, but she did not budge, and when he got close to her she spat and struck at him, and the dog could not understand it and came back to the house and came to the
bathroom and sat down and looked up at me and said, “What the hell, Bill!” He could not understand it.
That is the attitude before this committee of the proponents and opponents of the copyright bill- exactly the same set of circumstances, where each looks at it from exactly opposite sides of the fence. There is exactly the same circumstance, and yet what a great difference. What caused that difference in the case of the cat? The difference was this, that in the meantime that cat had taken on the responsibilities of a family and she had a service to render. She had something to protect; she had something to guard; something to safeguard, and it gave her greater courage. It gave her an altogether different aspect of life, and that is the position we are in. We are here looking at this copyright bill from the standpoint of carrying a great and tremendous investment.
Mr. BLOOM. You are the cat in this instance ?
Now, I was particularly interested in the testimony given by Mr. Solberg because I agree with it entirely, and Mr. Bloom inviting the attorneys for the proponents and opponents to agree at least on one point of the law. I think Mr. Solberg is correct in stating that the United States would not get into the union if we required formalities, and it is for that reason, and that reason alone, that we say that the United States should not go into the union because we should not give up those formalities. They are vastly more important to us than entering the union. Of course the gentleman from the Department of Foreign and Domestic Commerce stated here that it was vital for us to get into the union because by getting into the union we can get additional protection for certain of
our works. He stated that the motion-picture industry—and I rather thought he had a brief for the motion-picture industry—but he stated that the motionpicture industry was infringed on in Greece, and by entering the union we could prevent their being infringed on in Greece. Nothing of the kind, because when Greece entered the union she reserved the right of public presentation and execution of public works. They are not a part and parcel of the Greek copyright law, or part and parcel of the Greek membership in the convention.
As to protection in Japan, it is acknowledged that American moving-picture films are protected in Japan. Two films were sent over there recently, and Mr. Griffiths went over there with one of them. I think it was “Two Orphans." I do not remember whether that was the exact film or not. He had the “Three Musketeers, charging $1,400 a week for showing them in the theater, which they thought was too much and wanted to show one musketeer at a time.
In that particular instance, when the Japanese dubbed that film, or duked it, as it is called, Mr. Griffith enjoined them and collected damages. So they are actually protected at the present time.
Then, too, we must not forget the fact that United States citizens, by publishing their works simultaneously in Canada and the United States, obtain all the protection of the Berne convention. We frequently publish works—the Victor Talking Machine Co.—and we always get the protection of the Berne convention, because we pubnish in Great Britain and the United States on the same day, and therefore we are entitled to all the benefits of the Berne convention. We, under the present copyright act and law of the United States,
are not denied benefits in any shape or form. It is not a difficult matter, if we wish to obtain them, to obtain them now.
Therefore, while we believe that international protection is a splendid and needed thing, and we would like to see it broadened out as far as you can broaden it, we feel that to broaden it out by sacrificing the very design of the American copyright is wrong. We feel that to do what this bill is endeavoring to do, as Mr. Seligman and Mr. Weil have so ably pointed out to you, lifting them out of the public domain, and turning them back to foreign copyright proprietors, taking that from our national wealth, is just the same as taking Yellowstone Park, which belongs to the public, and turning it over to an English enterprise and allowing them to charge everybody for going through it. You would not do it with a public park, or take any public wealth and turn it over to foreign enterprise for exploitation. That is exactly what you are endeavoring to do in taking these works out of the public domain and turning them over to independent copyright proprietors in Europe.
Mr. Bloom. That is the one thing you object to in this bill, the idea of entering the Berne convention?
Mr. Paine. That is one great objection to the United States entering into the Berne convention, if it is necessary to give up formalities in order to get in. I believe in broadening the international protection. I believe it would be perfectly justifiable to say that every foreign author can be protected in the United States, regardless of whether his country gives American citizens protection or not, if he will publish his works with notice of copyright, file two copies in Washington, and register his claim of copyright. That is perfectly all right. But let us have that registration. Let us have that marking out of what this monopoly is. Here is a piece of music that comes to our attention, and we like it and record that piece of music; we find that there may be an imprint on it-Schott Sohne, from Germany. We know over in Mainz, Germany, they have a publication house, and we take that piece of music and enter into a contract with them to pay them royalties prescribed under the law, if they are prescribed, or whatever royalties they ask if they are not prescribed. We make a record of that, and that record is hardly on the market before we find that all that they have done is to publish a musical work, the copyright of which is nothing more than
Mr. BLOOM (interposing). A rearrangement.
Mr. PAINE. A rearrangement, and the work itself actually belongs to somebody down in Spain, and we are at once confronted with a copyright suit because we are infringing that man's undisclosed monopoly down in Spain. That is a serious thing. That is a thing that is a tremendous handicap in the business in which we are engaged. If that had been registered in Washington, we would have seen it because there he would have to set up on what he was claiming copyright, and we would have seen that he was claiming copyright on an arrangement and then we would have been able to say to him, is this arrangement an authorized arrangement? Is this an arrangement of a composition of which you have title, and if it is, then let us enter into a contract with you?
Mr. Bloom. Do you really mean that, that you can find out from the copyright office that it is an arrangement, or what it is, from Spain, or any other place?
Mr. PAINE. I don't say we get it from Spain. Our copyright sets out the matter with annotations, and many times the arrangements of all these matters are set out supposedly clearly; at least, we have not had a great deal of trouble in 'relying on it.
Mr. Bloom. It is not necessary to do that. They just put on copyright, and send it into the office and get a copyright.
Mr. PAINE. No; these forms which are prepared by the Register of Copyrights have the line, “Copyright is claimed," on them, and that line is invariably filled in with the published work that the register gets, and No. 3 is the musical composition, and in there is stated, copyright is claimed on this, that, or whatever it may be. Now, we have found that works out in valuably to us and have succeeded in carrying on our business with a less amount of trouble or difficulty, because that registration is actually there and we are able to study it and get to the bottom of who is the copyright proprietor.
Now, when you have an undisclosed monopoly-we have worked under that in England, but we are fortunate in not having to work under it to a great extent in Canada, because in Canada American compositions are popular, and it is entirely possible for us in our Canadian business, to go to the copyright office in Washington and get information there, so that we have little or no difficulty in obtaining information we need for our Canadian business, but in England, it is a terrible situation, delays, delays, and delays, in publication of works, right at the present time, for six months.
Mr. Bloom suggests there is no use in going on in opposition to the Berne convention because we have gone on record here and in the previous hearings as opposed to it on the single ground that we object to any undisclosed monopoly, and we have in the record a very substantial brief on that subject.
I do want to take up one or two things that I think are of more or less importance. There has been a great deal said by the proponents of the bill that we desire only our constitutional rights; we desire our constitutional rights; that is all we are asking.' Therefore, I say that so far as I am concerned, and my company is concerned, we are entirely satisfied that they should have them, and we would suggest, therefore, that all the copyright bills be repealed and let them stand on the Constitution. We know just as everybody knows that if they stood on the Constitution they would have nothing, absolutely nothing, that everything would be in the public domain because the Constitution gives them nothing, and, therefore, it is mere camouflage to say that we want our constitutional rights." There are not any. We are entirely satisfied that is what they shall have.
Mr. BLOOM. You have read the Constitution?
Mr. PAINE. No; not under the Constitution. The Constitution gives no rights whatsoever; it simply says Congress shall have the power to give rights.