Lapas attēli

Two of these 15 bills are now before your committee for discussion-H. R. 10434, introduced on March 17, 1926, by Mr. Vestal, and H. R. 5841, reintroduced on December 17, 1925, by Mr. Perkins. This latter bill (H. R. 10434) was the basis for discussion by the copyright revision committee at the many conferences held in New York, the activities of which committee have been explained to you at this hearing. The bill was redrafted by the persons participating in those conferences.

The Vestal bill is noticeably different in the arrangement of its subject matter from that followed in the original bill, for that reason it is difficult to determine readily just how much and in what manner the Vestal bill really differs from the Perkins bill, but a careful study of the two bills and an endeavor to bring the corresponding sections of each bill together makes an analysis possible.

The Perkins bill of 40 pages contains nearly 1,000-line print, to be exact, 975 lines. Of these, 656, or almost exactly two-thirds of the original section, are repeated in the Vestal bill without any change whatever. Of the remaining one-third, or 320 lines, a number of

, lines reappear in the Vestal bill with changes only of a few words. One hundred and fifty lines of the Perkins bill are omitted in the Vestal bill, and there are in the latter 320 lines of new text matter.

Perhaps the committee can be best served by an attempt to clearly indicate the character of the variances discovered in the bills and by briefly pointing out at least the more noticeable differences. I feel almost apologetic because I am sure my statements, of necessity, have to be detailed and prosy and can not be relieved by any bursts of oratorical eloquence; but I hope that it may not be unuseful to present the result of a very careful, conscientious study of the two bills side by side.

A comparison of the texts of the two bills with the copyright laws now in force discloses an endeavor to retain in the Perkins bill provisions of existing law, and in the present language of such statutory provisions. The advantage of doing this is obvious. It is this language which has been interpreted by the courts in such copyright decisions as are applicable and available. The interjection of new language or changes in language must inevitably lead to questions as to meaning and demand new discussion and judicial interpretation.

There is greater uniformity of language throughout the Perkins bill. The Vestal bill is admittedly a compromise text embodying agreements secured in the conferences of the copyright revision committee, and evidently in the different sections the language was proposed by, and is intended to meet the desires and needs of, the interests concerned in each special section drafted; hence there is corresponding variation of language.

À patient study of the text of the Vestal bill indicates that careful thought has been given to the language used in the changes proposed, and that it seems generally to clearly express what was intended and what it was desired the proposed copyright legislation should contain. Some of the proposals seem to be desirable and acceptable as amendments. The following may be very briefly indi.cated as examples: Granting to a licensee of an exclusive right,

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authority to bring suit in case of infringement (sec. 9); providing for copyright in derivative works (sec. 4); for copyright in photographic portraits made for hire or on commission (sec. 6); for a period of 6 years after cause of action, during which civil proceedings may be instituted (sec. 26); that registrations and recordations shall be constructive notice of copyright (sec. 45); for judicial cancellation or correction of registration or record made under certain circumstances (sec. 47).

But there are other changes proposed which invite close scrutiny and should receive very careful consideration before acceptance.

The first noticeable difference between the two bills is in the arrangement of the text. In the Perkins bill there is an orderly sequence of the material. Copyright being a personal right, that bill first sets out and explains who may secure copyright. This is followed by a description of the works which may be protected by copyright; then succeeds an explanation of the exclusive rights secured, including, as a subdivision, provisions concerning the transmission of such rights to other persons by assignment, lease, mortgage, etc. Under this heading will also be found the provisions qualifying or limiting the rights granted. Next, under the heading

Term of copyright protection,” there are brought together all the provisions having to do with the period of copyright protection and its variations, and also the proposal for the extension of subsisting copyrights to the new term of protection granted. Then follows the judicial provisions, and a statement of the remedies for infringement, including all the provisions relative to bringing suit for such trespass, and the section as to prohibition of importation. The provisions relating to the deposit of copies and the registration of the claim of copyright are next in order, with the administrative provisions under the heading “ Copyright Office," and finally come the proposals for entry of the United States into the Copyright Union.

Under the first heading of the Perkins bill after the general declaration that copyright is secured by the act to authors for all their writings and shall vest in the author immediately upon the making of his work and shall not depend upon the accomplishment of any conditions or formalities, there follow provisions for copyright for alien authors; copyright for the authors of derivative works, such as compilations, arrangements, dramatizations, and translations, etc.; copyright in works made for an employer for hire; copyright in the manuscript of an author acquired under his will; copyright by the publisher of a newspaper or periodical; and finally copyright by the makers of motion pictures and phonographic records.

In the Vestal bill the first éight sections are of miscellaneous content and without any heading and are followed by sections headed :

Assignment of copyright; Term of copyright protection; Infringement and Remedies ; Manufacture and importation ; Copyright notice, registration, and deposit, which includes a list of works entitled to copyright; then Copyright office, and, finally, Entry into the copyright union.

This bill sets out with a general declaration to the effect that a copyright (1) is secured and granted by the act to authors throughout the United States and its dependencies, (2) without compliance with any conditions or formalities whatever (3) from and after the creation of their work (4) for the term “ hereinafter provided,"


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(5) in all their writings, published or unpublished, (6) “in any medium or form or by any method through which the thought of the author may be expressed," and (7) that- , such copyright includes the exclusive right to copy, print, reprint, publish, produce, reproduce, perform, render, exhibit, or transmit the copyright work in any form, by any means, and/or transform the same in its various forms into any other form, and to vend or otherwise dispose of such work, and shall further include the exclusive rightswhich are enumerated in the nine following lettered paragraphs.

This paragraph quoted illustrates one of the characteristic differences between the two bills, namely, the persistent endeavor in the Vestal bill to be very explicit and almost overelaborate in its specifications. Thus, for example, the new matter included in the paragraph containing the general grant of rights consists in the words " to perform,” “ render,” or “exhibit,” and in adding to the exclusive right to “transmit the copyright work in any form (Perkins bill) the exclusive right of transmission “by any means," and, still further, the exclusive right to “ transform the same in its various forms into any other form,” all of which is a considerable extension of the much simpler provision of existing law granting the exclusive right "to print, reprint, publish, copy, and vend the copyrighted work.”

Both bills are in agreement in explicitly extending the author's exclusive right to include the use of his work for broadcasting, section 1 (g) of the Vestal bill providing for the exclusive rightto communicate said work to the public by radio broadcasting, telephoning, telegraphing, or by any other method or means for transmitting sounds, words, images, or pictures.

Both bills propose the same general period of copyright protection, namely, the life of the author and 50 years after his death, which is the term of copyright fixed by the international convention and by the laws of most European countries, noticeable exceptions being Germany, life of author and 30 years, and Spain, life of author and 80 years. In the Perkins bill all the various provisions relating to the copyright term are brought together in six sections under one heading, and they resolve themselves into the simple general term of the life of the author plus 50 years, or for derivative works, newspapers, motion pictures, phonographic records as well as posthumous works, 50 years from the date of such works are given to the public. The only exception is in the case of works of joint authorship.

The provisions of the Vestal bill as to copyright term are very complicated and result in several varying periods of protection, and in one case iñ an undetermined period. Section 13 states that the term “shall be for the life of the author, if living, and for a period of 50 years after his death.” The purpose in interjecting the words “ if

living” is not apparent. There is also an exception made, namely, where the author is not an individual,” in which case the term shall be 50 years “from the date of completion of the creation of the work." This presumably has reference to the provision in section 3, where the employer of the actual author is declared to be the owner of the copyright “ as author," in cases where such employer is a corporation. Section 13 further provides that in the case of a work by joint authors, the term shall end at the expira

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tion of 50 years from the date of the last surviving joint author:. The Perkins bill provides in such case that the copyright shall terminate at the expiration of 50 years from the date of the death of the author who dies first, unless a joint author is living at the end of said 50 years, in which event the copyright shall terminate upon the death of the last surviving joint author.

These different provisions as to joint authorship might result in greatly varying periods of protection, especially where one of the joint authors is young and the other old. An actual possible example will most clearly demonstrate. Suppose A and B are joint authors of a book published in 1926, A born in 1900, and B born in 1861 and dying first at 70 years of age in 1931. The copyright would, under the Perkins bill, run an additional 50 years after B's death up to 1981. But as A' lives to be 85, the copyright would terminate on the date of his death, 1985, after 59 years of total protection. Under the Vestal provision the copyright for this supposed work would run for 50 years after A's death in 1985 or until the year 2035, in all for a period of 109 years, which would certainly seem a considerable extension from our present first term of 28 years with an occasional second term of 28 years more.

In the Perkins bill, as already stated, the copyright term for all derivative works such as compilations, abridgments, etc., composite and cyclopaedic works, newspapers, periodicals, motion pictures, and phonographic records, as well as for posthumous works, is uniformly fixed at 50 years from publication, in the proviso to section 24. This proviso is included in section 15 of the Vestal bill, but the term is there fixed at 56 years from first publication.

A still further variance in the length of the copyright term results from the proviso to section 13 of the Vestal bill, reading as follows:

That where the work is based in whole or in part upon a work in which a longer copyright term may endure, then the copyright in said former work shall endure for a term equal to that of the latter work, or for the term of 50 years aforesaid, whichever term is longer.

This proviso seems to have reference to the works dealt with in sections 4 and 5, namely, certain derivative works, such as compilations, abridgments, adaptations, arrangements, or dramatizations, etc.

In section 14 another term for posthumous work is provided, without explanation or qualification, namely, 50 years from the date of the author's death. It should be pointed out that in many cases the first publication of a posthumous work might not take place until 50 years or more after the author's death, in which case there is apparently no provision for its copyright.

The continuation of the subsisting copyright in any work for the new, longer term proposed (according to section 24 of the Perkins bill) vests—as the present renewal term does—first, in the author if living; second, in the widow or children of the author; third, if the author left a will, then in the author's executors or in a duly appointed administrator with the will annexed; and fourth, in the absence of a will, in the author's next of kin. In the Vestal bill, with a desire to secure an equitable division between author and publisher of the profits which might result where a book continues to sell during the extended term, it is provided that where the author

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has parted with any or all of the rights for the subsisting term and agreed to part with the renewal term under a royalty basis, the owner (that is, the publisher) shall be entitled to the full extended term on paying the royalties at agreed rate to the author or, if dead, to his representatives, while it is declared that where there has been a purchase for a lump sum of the subsisting term and agreement for renewal term, then, after expiration of the first 28-year term, the author “and/or the owner " shall be entitled to the extended term upon conditions agreed upon, or, in absence of agreement, fixed by the court as justice may require."

Section 2 of each bill provides in substantially the same language that copyright shall also extend to the works of alien authors, but in the Vestal bill there is a provision for such extension in the event that the work is first, or simultaneously published in the United States and/or a foreign country adhering to the International Copyright Union," and that“ published simultaneously” may mean publication any time within 14 days. In section 63 there is a direct declaration that copyright shall subsist in the work of foreign authors as provided by this act, on and after the date of the President's proclamation, with a proviso (exactly as in the Perkins bill) that the duration of copyright in the United States shall not in the case of any foreign work extend beyond the date at which such work has fallen into the public domain in the country of origin.

In the provision (sec. 2) for the President's proclamation declaring reciprocal rights, he is also authorized to proclaim the “cessations” of such rights, a provision not in the Perkins bill.

The omission of 18 sections of the Perkins bill has been in part explained by the representative of the Hearst newspapers, who told you why he insisted on the elimination of sections 6, 13, 22, and 36, which were provisions in the bill intended to protect contributors to periodicals, providing that printing without special agreement did not imply an assignment, but that the publisher should secure only a license to print, and the copyright should vest in the author of the contribution. The omitted section 3 of the Perkins bill relates to the authorship of compilations, abridgments, dramatizations, translations, etc.; section 5 defines the copyright of the owner of an author's manuscript obtained under his will; section 7 provides for the copyright of makers of motion pictures and phonographic records, and section 23 for the term of such copyright; section 11 safeguards an author's copyright when his work may have been published by the Government; section 12 contains a general declaration of the rights of authors; section 15 (proviso) requires that assignments and licenses, etc., shall specify and clearly describe the rights assigned; section 21 fixes the copyright term for posthumous works; section 25 the term for works by foreign authors; section 34, proviso, requires the recording of assignments, etc., before bringing suit under its provisions; section 35 provides for a presumption of copyright in actions for infringement under certain circumstances; section 38 contains a direct affirmation of the author's common-law right; and sections 71 and 72 provide explicitly for the copyright of works by foreign authors after our entry into the Union. A few of these provisions of the omitted sections of the Perkins bill are incorporated in whole or in part in the Vestal bill in other wording.

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