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Mr. Bloom. Before you could send, vend, or offer for sale would first have to register in the Copyright Office and file two copies. Is that right?
Mr. WEIL. That is my recollection of that law. I would not speak with certainty without having the text of the law before me, because I have been more interested and prepared myself more particularly to speak with reference to the law of 1909 and the changes contemplated.
Now, Mr. Solberg also pointed out, as a criticism of this bill, the language in sections 36 and 58, which expressly provide that there is to be no discretion in the Copyright Office to refuse to register or to record instruments that are presented. He criticized that on the ground that imperfect instruments might be presented, or, as I recollect, that signatures might be lacking, and there again he seemed to me to miss the very object that is sought here. It is of no importance, as far as the present inquiry is concerned, as to whether or not an instrument is perfect or not, or as to whether or not it is effective or not. To him the importance is that notice is given him by that registration that somebody is making a claim that may or may not be adverse to him. So the more that is put on record, whether perfect or not, the more opportunity he has to ascertain whether or not he is safe in proceeding.
Mr. Bloom. No right goes with that.
Mr. Weil. No right goes with it, and machinery is provided that if the author or anybody else is aggrieved he can apply to the court and have the paper stricken off the record.
Mr. Bloom. There never has been any trouble?
Mr. WEIL. There never has been any trouble, and at best the means that would be afforded for checking up title is very imperfect and the more you get, the better off you are under all circumstances. But that is specially important, as this act provides that in the case of assignments or licenses there is priority, as to bona fide purchasers for value in the order of record; that is to say, the ordinary real estate practice in most of the States of the Union is applied in conveyancing in connection with copyrights. Now, under those circumstances it is obvious that to allow the Copyright Office to refuse to put a paper on record, even for a moment, would entirely destroy the effect of that statutory scheme and create the possibility of the greatest kind of injustices.
But the point I wish to specially make there is that nobody can be harmed by having papers put on record, whether or not they are valid or effective. They give no rights, but they simply constitute record notice of the assertion of a right, and hence they give notice and information to those who might be affected.
Another criticism that Mr. Solberg made that I noted was that he pointed out, in connection with joint authors, that there might be a variation in the period of protection. On the other hand, he approves of the principle of giving copyright to an author during his life and for 50 years thereafter. Now, it is of the very essence of that scheme, since one man may live for 1 year or 10 or 50, as the case may be, depending on his age and state of health, and after he composes a work there would be a variation in every instance under that scheme in the term of copyright. But that has never been deemed an objection in any sense to what is called the “ideal
period” of copyright; that is to say, the life of the author and 50 years thereafter. So that the criticism will fall of its own weight, since there is an approval of that indeterminate term in the one case and hence there can be no objection in the other.
In general, I have thought that there was but one sound criticism taat was made of the bill by Mr. Solberg, and that he is undoubtedly correct about, with reference to the effect of the language of the bisl respecting acknowledgments of instruments taken abroad, but that point has been noted by the Authors' League, and I understand they have an amendment intended to cure that, so I need not go into that.
Of course, gentlemen, no bill is perfect, but there can not by any real question, and I think the character of such opposition as there has been, and the nature of the criticisms you have heard, must convince you that this comes in most respects as close to being a good
Ꭹ copyright bill as any that is ever likely to come before you. The motion-picture producers and distributors of America wish to indorse this bill, because they deem it a fair bill. They reserve their indorsement with reference to the musical provisions of the bill. They also reserve their right, if at any time future amendments to this bill are made, which they deem fair, whether those amendments be in the form of alterations in the bill or not, or by additions, to voice their approval or disapproval.
The position of the motion-picture producers has at all times been that they are in favor of anything that is fair.
One point that has not been brought to your attention, but that has not been forgotten, is that while the Vestal bill has been talked of as being an amendment of the Perkins bill, the Perkins bill was really an amendment of the Dallinger bill, and it was the motionpicture industry, not on their own motion, but at the request of various interests represented here, who originally drew the Dallinger bill. You will not find a vital principle in either the Perkins bill or the Vestal bill that was not proposed by the motion picture industry in connection with the Dallinger bill. The reason that the motion-picture industry was compelled to oppose the Perkins bill was not because of the principles contained in that bill, but in so far as they were present, but because changes had been made not in the bones, for that is what the principles are, of the bill, but in the trimmings, the flesh and blood of the bill, and those changes were not practical and were not fair.
As far as the suggestion made by the motion-picture exhibitors is concerned, the organization that I represent naturally has the utmost sympathy with their aspirations. " It may be that the amendment proposed by them has the proper solution in it, after proper amendment, of the difficulties that have been presented to you. If they propose a fair method of solution of those difficulties they may be assured of our hearty support. Mr. Buck had not monopoly on fairness when he asked you to enact a fair bill. That has been our position at all times. We have given of our best in an effort to furnish a solution of this pressing problem. Copyright revision is urgently needed. No one is satisfied with the present act who has had real experience with its workings. It is possible to get along under it by complying with various burdens, some of which are expensive and most of which should be unnecessary. But the act
is bad. It has questions in it that have not been resolved after 17 years. Nobody knows the law.
Mr. BLOOM. You mean the law is bad? You said the act.
Mr. WEIL. The act of 1909; yes. Nobody knows what the law is, and it is impossible for commercial interests to have adequate protection under those circumstances. It is equally impossible for the author to have adequate protection, because his continued wellbeing naturally depends on the well-being of the commercial organizations which enable him to live by paying him the just price of his work.
Now, there is one observation that I must make, and that is that such opposition as has come before you to the Vestal bill has been in large part concerned with very minor things. You have heard the controversy between the publishers and the librarians. To an outsider it seems sentimental more than anything else. You have heard the controversy between the American Society of Composers and Authors and the various users of performing rights of music. Into the merits of that controversy I do not propose to enter, but one thing is apparent, when Mr. Osborne told you at the beginning that the small rights in musical compositions are involved there, I think he made a true statement, because that is the general term applied to performing rights of that kind. Now, under those circumstances, if the society wishes to carry out what I believe to be its attitude of fairness, it seems to me--and if they are met in a proper spirit by the other interests concerned that—it seems to me that problem should not be incapable of solution. If some of the other problems that have been met here and have been resolved to the satisfaction of everybody concerned with reference to major rights could be handled by negotiation and by agreement, surely these problems as to minor rights, as to small rights, should not be impossible of solution. And taking Mr. Buck's remarks in the spirit in which they were, I am quite certain, intended, and realized that he not only spoke as a member of the copyright committee of the Authors' League, but also as president of the society, I wish to strongly concur in his remarks but to bring them home to his own door and to urge
hat a proper spirit of consideration all around be shown, a proper spirit of compromise, not on the basis of a surrender of real interests but on the basis of trying to meet a real problem as practical men should.
We have been coming down here now for several years, gentlemen.
We have a real need to be met in the shape of copyright revision. This bill, as far as it goes, is on the whole the best bill that has been presented to you. We indorse it, subject to the revisions that I voice, and we strongly urge its favorable consideration by your committee.
Mr. Bloom. Mr. Weil, there is one thing I have not heard anyone yet here to-day speak about—the divisible copyright.
Mr. Weil. You wish me to speak about that?
Mr. Weil. Gentlemen, historically, copyright began with being exactly what it'says it is; that is to say, the right to copy. As time went along, the right to copy frequently became the least of the irights in copyright. Performing rights, rights of dramatization, rights of translation, rights of variation from one form to another, became of
increasing importance. The only place where, apparently, legislative machinery could be provided in connection with the protection of these rights was under a copyright statute. So all these rights were lumped together and became part of the copyright. So where you started with something which really was indivisible, that is, the right to copy, to just reproduce in bulk-that is all it meant you ended with a considerable group of rights. I omitted, for example, the usual preliminary in the case of publication of many books, periodical rights. Now, all those rights that are part of copyright are bought or acquired one way or another by the organizations that specialize in the utilization of that particular class of rights, but the rule of law has always been that since copyright has been regarded as an entity, something indivisible, that while in commercial practice and in reality you were dealing with a group of rights, in law you were dealing with a single right. That has proven rather embarrassing, because since in legal contemplation copyright is a single thing, though composed of various parts, if you assigned the copyright the man you assigned it to became its proprietor, but if you purported to assign one of the separate rights he became a licensee.
Now, under the rules of law a licensee can not sue in his own name. He is not able to protect himself in a case of infringement or attack on his rights, and that theoretical difficulty has been carried to such an extent that I understand there is a case now pending in one of the courts in New York where this contention has actually been made: In that case there was a novel, and the novelist, the owner of the copyright, parted with his dramatic rights, and thereafter he parted with his motion-picture rights. Along came another motion-picture company and made a motion picture which was an infringement. The motion picture that had been made under the license from the original copyright proprietor was not infringed because it was changed or not materially infringed, as I understand it, because it was changed after the production of the infringing work, which had gotten on the market first. An action was brought by the motionpicture company, who held the motion-picture rights, because it was really their rights that had been damaged by this other production. The courts promptly held they could not maintain that action. Thereafter the motion-picture company procured the copyright proprietor of record to join as a party plaintiff, and I understand the contention is now made by the infringing company that that action can not be maintained for this reason, as they claim, that while the action nominally should be in the name of the holder of the copyright they say he was not damaged, and hence suffered no injury whatsoever, because he did not own either the dramatic or the motionpicture rights. It is quite true that I do not agree with that contention, but I am just citing it to show you the practical difficulties that arise, that may arise, and how far those difficulties may go.
Mr. Bloom. You are in favor, Mr. Weil, of the divisible copyright? Mr. WEIL. Yes. Mr. Bloom. Do you know any objection to it?
Mr. WEIL. None whatever. It is simply writing into law the ordinary commercial practice.
Now, there is one other point, Mr. Bloom, that I want to take up for a minute, because you asked the question and that is with reference to section 65 of the bill.
Mr. Bloom. You and I never are going to agree on that.
Mr. WEIL. At least let me tell you what is intended to be done by it. Perhaps we may agree, because I often agree with other men.
Mr. BLOOM. If we agree you will have to change your mind.
Mr. WEIL. No; but I sometimes induce others who do not agree with me at first-induce them to try to change their minds.
The object of putting that clause in was this: That drafters of this bill knew that you had pending before you a design copyright bill. Since your committee of course had not reported on that and they do not know whether you intend to enact it into law or not, they could not refer to that by name, but they did know that that design copyright bill was intended to cover the same subject matter as is now covered by design patents. They had to deal, in drafting this bill, with existing law. They naturally assumed that if at any time Congress passed a design copyright bill there would be an appropriate amendment of this bill so as to substitute design copyrights for design patents. You have doubtless heard enough in connection with the testimony on the design copyright bill to realize that that is a special branch which would require very special legislation if you enact legislation in connection with it. The language of this bill in its opening sections should be broad enough to cover everything that you could constitutionally grant copyright on.
Since, of course, your powers are limited by the Constitution, if you grant copyright in designs intended for utilitarian reproduction, it will be under the Constitution, and unless there had been a saving clause of some sort in here, the broad general language granting copyright in everything that is copyrightable would in itself have carried copyright in designs. So, though intended for utilitarian reproduction, that is the object of the insertion of this clause, to prevent that broad language from applying to a field it is not intended to apply to. There was no novelty about that, because there is a similar clause in the English statute. I believe, although I have not the English statute before me, that the only difference is that the English statute does not contain the language after process” at the end of line 22, page 45.
Mr. Bloom. You only speak about the English patent laws. Would you want the United States to enact a law, to pass a law that would be the same with reference to patents as the English law is?
Mr. Weil. Did I say the English patents law?
Mr. Bloom. No; but you are saying people are always going to the English law. Now, you have a copyright law and you have a patent law, and I think you are pretty well versed in patent law.
Mr. WEIL. I am not versed in patent law, so I can not answer your question.
Mr. Bloom. All right.
blinded admiration for anything because it is English, I will cheerfully say so.
Mr. Bloom. No; I do not say that.