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but years. Sach delayed registrations are of little help in this age when there is always a race for being first in the field. And this trouble seems to be one beyond remedy by law. If any attempt is made to compel registration by prescribing penalties for noncompliance, the result is loss of the author's rights.
In conclusion it should be pointed out that the attention of your committee has been called to a complaint of lack of sufficient protection proposed for works of the fine arts. Artists feel that deliberate and colorable imitations of their work are successfully made contrary to their interests, causing them not only money loss but doing damage to their reputation. Neither bill has included any section to secure the protection desired, but it is possible some draft for such a section may have been submitted to the committee.
Nr. Bloom. Outside of those few things that you have mentioned, the bill is all right? Is that the idea? [Laughter.]
But one paragraph, the last paragraph, Mr. Solberg, does not agree with what Mr. Paine said yesterday, that they are within constitutional rights.
Mr. SOLBERG. I am afraid Mr. Paine did not quite state that.
Mr. Bloom. In your 50 years' experience, Mr. Solberg, could you suggest any way at all to get these lawyers to agree on one thing?
Mr. SOLBERG. I am not a lawyer, and I have not studied legislation as a special subject, but I have studied copyright legislation, and I have yet to see a copyright bill that some one can not propose to the copyright office an interpretation that was absolutely not dreamed of—and lawyers at that.
Mr. BLOOM. Well, that answers that.
Mr. Bloom. Would you be willing to submit some kind of a draft to cover that?
Mr. SOLBERG. Yes; several have been submitted from the artists interested to the Copyright Office.
I should like to make one further statement, a correction of a wrong statement made in regard to the publication of the Catalog of Copyright entries. It was stated that the Catalog was six months behind. Now, it happens that last year we lacked money for printing, and while the copy was made and sent to the printer, the printer could not go on with the printing, and when 75,000 cards, index cards, which made up that copy, had accumulated in the Printing Office. I went there and took the copy back, for the cards were required in the daily work of the Copyright Office in answering inquiries. Going then to Congress and asking for a deficiency appropriation, which was promptly granted, the printing was resumed and has been carried on, so that we now have actually printed ali the numbers up to and including March. Of course, the April numbers can not be completed until after the completion of the month.
Further, the statement was made in relation to the using of the Catalog of Copyright Entries for searching for registrations made in regard to books. Now, it happens that the division of the Copy. right Catalog that relates to books proper, excluding pamphlets and leaflets, is printed three times a week, every other day, and there has been no cessation of that printing. It has gone on three times a week for all these years.
Mr. Bloom. The only other delay that you speak of was for one time?
Mr. SOLBERG. No; that delay, unfortunately, was repeated three years in succession for this lack of money.
Mr. Bloom. Well, you mean to say every year?
Mr. SOLBERG. Now we have this special appropriation to cover it, and they have also granted a considerable increase in the annual appropriation, up to $45,000 a year, under the assurance given Mr. Madden that we shall not ask for any more money but will still furnish the catalogs promptly.
The CHAIRMAN. Thank you, Mr. Solberg.
Mr. OSBORNE. Will you inquire of Mr. Solberg, Mr. Chairman, whether his last statement about the lists of books being published three times a week, and being up to date, is not an answer to the librarians in their objection that there are no official lists from which they can obtain a list of copyright books in America ?
Mr. SOLBERG. I think the answer, of course, would be that it is only an answer to that extent. Whatever titles are included in our list would furnish an answer.
The CHAIRMAN. Now we will hear you, Mr. Weil.
STATEMENT OF ARTHUR W. WEIL, OF NEW YORK CITY, COUNSEL
FOR THE MOTION-PICTURE PRODUCERS AND DISTRIBUTORS OF AMERICA
Mr. WEIL. Mr. Chairman and gentlemen, I appear as counsel for the Motion Picture Producers and Distributors of America. That organization consists of practically all the large producers and distributers of motion pictures in the United States, so that for practical purposes I am talking for the motion-picture industry. As you doubtless know, that industry is now the fourth largest in the country, so that I am speaking here for the interest that is affected in quite the most considerable degree by any copyright legislation that you may enact.
Mr. Bloom. What percentage of the moving-picture industry does. that organization represent?
Mr. WEIL. About 90 per cent, I believe, of the large producers are members of our organization. I think there are only three companies, only one of which is really of first rank, that are not members of our organization.
In the first instance, we wish to record our unalterable opposition to the so-called Perkins bill, for the reasons that were outlined by us in the hearings on H. R. 11258, of the Sixty-eighth Congress,
and which I shall accordingly not repeat at length, as they are a matter of record now.
Before I heard Mr. Solberg speak I was inclined to think that the Vestal bill was rather a good measure; in fact, an exceedingly good measure in the main, and I am frank to say that after hearing him speak my opinion to that effect has not been shaken. It is impossible, of course, in the brief time that I shall have to answer all the things that Mr. Solberg said, but it seems to me that many of the objec
tions that he raised to the Vestal bill either rest upon practical misconceptions or rest on a failure on his part to see what was really intended, and I think that was due to the fact that after all all legislation is made for practical men, and however accurate theory may be theory when carried to its ultimate extreme is not fitted for the ordinary realities of life.
Now, I am going to plunge right into the middle of things there and speak about the statements made by Mr. Solberg with reference to what he calls the “innocent infringement clauses.” Mr. Solberg says that those clauses, if I quote him correctly, were a trap for the unwary and that their effect will be most regrettable if they were enacted. He thought that they were an invasion of the author's rights and that they were entirely undesirable from every point of view. He seems to have considered in his address to your committee that those clauses were solely designed to enable third parties to claim that where they had invaded the author's rights they should be relieved of the ordinary consequences of such an invasion. The real purpose, or one of the real purposes of those sections, is much deeper than he seems to have thought.
We are all being urged now to go into the Berne convention under a new system. Heretofore in this country all published works required notice of copyright. Prior to the enactment of the law of 1909 registration was essential to copyright; since the enactment of the law of 1909 many persons have thought that registration is still essential. Now, as to that, perhaps the committee does not know the exact situation under the law of 1909.
Under the law of 1909, in the case of published works, one obtains a copyright by publishing the notice of copyright. Registration is only necessary if you care to sue, under decisions of the courts. In other words, you need not register at all unless you wish to sue, unless for some reason or other the Librarian of the Library of Congress should wish copies of the unregistered work, in which event he can require you to make the deposit, something that, as far as I know, has been done very rarely, if at all.
Mr. BLOOM. Before 1909
Mr. WEIL. I am talking about the law of 1909 now. Before the law of 1909 registration was necessary, but as a result of changes that were made at that time, the effect of which I think was not perceived, that situation arose.
With reference to unpublished works, the copies must be deposited under section 11, and incidentally nobody knows what the effect of that notice is or what that section means; it is still before the courts and is now coming up, I think, for the first time for an authoritative decision before one of the State courts in New York State.
That is the present situation with reference to registration. On the other hand, registered copies of all works require notice of copyright, and you at least, if some other work came before you and there was some question as to whether you were infringing or not, you would at least have the opportunity to have the limited protection afforded you by search of the copyright office to see if a work had been registered, and also you had the opportunity of seeing if a copy was available and you had notice of copyright. Now all that is to go into the discard. You can not throw settled habits of thought into the discard, and our people have been accustomed to being given some opportunity to see whether works are copyrighted in fact or whether or not they are apparently available to the public. If you go into the Berne convention--and we are in favor of going into the Berne convention-you can not, in our opinion, prescribe the placing of notices of copyright on works nor registrations as a condition of the securing of copyright, because under the scheme of the Berne convention copyright is automatic on creation; but you can, in a measure, under proper machinery, safeguard the public to some extent in their settled habits of thought until they become accustomed to the effects of this transition. For that reason the avenue of approach seemed to be along the line of so-called “innocent infringement " clauses; that is to say, clauses of that character, if properly drawn, seem calculated to cause any prudent individual to register his work or to place notice of copyright on it, or to do both, because innocent infringement clauses provide that they do not apply. That is, the defense of the innocent infringement would not apply if that is done. So that a premium will be put upon registration to a degree that does not exist at the present time, because at the present time you need not register unless you wish to bring suit, as far as published works are concerned, and that is one of the chief underlying and, it seems to us, rather essential reasons for having clauses of that sort in any measure that you enact in connection with our going into the Berne convention.
Now I agree with Mr. Solberg that it might be well to have a general clause rather than these special clauses that apply to given industries, but none of the industries except those who figure in the special clauses seem to have considered the matter from that aspect. I think that, for example, the periodical publishers, if they had considered the question from that angle, might not have voiced some of the objections that I heard Mr. Lucas voice, and I had that in mind when I said, in answer to a question of Mr. Bloom, that I thought Mr. Lucas was rather modest in his requests in connection with an innocent infringement clause, because it seems to me that that is the only practical method of handling what may otherwise be a real difficulty and react seriously on everybody concerned. In that manner, by limiting the remedy, people can have the option to register, and can be induced to register, it would seem that a protection far more effective in fact than the existing one would arise when one desires to find out whether or not a given work is in a public domain or is subject to appropriation.
Mr. Solberg does not seem to have considered that angle of the matter at all, as far as I was able to follow his remarks, and that is a matter for the very serious consideration of your committee, because if I am correct in the views that I am voicing, that will obviate many of the objections that you have heard of a more fundamental character.
Now, one other matter that I want to take up is this. Mr. Solberg criticized the Vestal bill providing in connection with section 41 that deposits called for by that section shall be made 30 days instead of promptly. I think that I am voicing the opinion of every lawyer who has considered the matter when I say that nobody yet knows what “promptly” means in the present act, and by putting a definite
limitation of time in a given individual who wishes to comply with the law knows where he is.
While I am not directly concerned with the manufacturing clauses of the act I have this to say about them: If all the parties interested had taken as broad minded a view of the problems presented as the American Federation of Labor and had been able to see the other man's point of view as well as that organization, I do not think they would be coming here time after time. Mr. Solberg said that if an affidavit of manufacture were not filed that I want to be exact about this-_“no action for infringement shall be maintained under section 24.” If you will examine section 24, you will see that Mr. Solberg was inaccurate in that statement, because what section 24—I should have said section 29, on page 24, line 10—that section as drafted in the Vestal bill merely says that no action shall be maintained for the infringement of the right to publish, print, or vend the work at any time or times when compliance with such preceding section is requisite. In other words, it does not say that you can not bring an action for infringement merely because you do not manufacture here, but it says that since the manufacturing clause is simply directed to the printing of books here, if you do not comply with the object of that clause you can not bring an action for infringement of your book rights, but if as an author you have your book rights or picture rights or dramatic rights, or the various other rights that are inherent in a work, and those are infringed, you can go right ahead and bring your action, and that is one of the great concessions that the American Federation of Labor made, because, of course, that materially weakens the protection that they have heretofore enjoyed under our law. As I say, I hold no brief for them, but I am simply making that statement for a double reason, both to point out inaccuracy and in the second place to call attention to the broadminded attitude that that organization has taken throughout.
Mr. Bloom. That does not apply to periodicals issued regularly, or at least four times a year or more frequently?
Mr. WEIL. As far as periodicals are concerned, apparently no penalty is provided in case they do not comply with the manufacturing law, so that in the case of periodicals, if there is an infringement, whether they file an affidavit or not, they can prosecute the infringer. I believe the reason that that was done was that the federation felt the periodical would be printed here in any event, because of commercial necessities, and they did not require any extraordinary protection on that end, while they felt that books might or might not be printed here, and they wished to protect themselves in that. There was a reason for that exception, just as there is a reason for practically everything that was done in connection with the framing of this act.
Mr. Bloom. The old law, with reference to registration was, as I remember it, that before you could sell you had to register.
Mr. WEIL. Before you could sell ?