Those are the only sections of the British law that deal with the question. You will note that infringement is defined as importing for sale or hire an infringing work, and that the penalties are visited upon one who imports for sale or hire. In section 14 it is stated that this prohibition of a work that is printed in both the United Kingdom and abroad, at the request of the British copyright owner, is against an infringing copy. Now, there is a long history behind that. Apparently the English prohibition is against importing for sale or hire; and the long section 14, covering over a page, gives the details of how they are going to handle this infringing importation, what the Government does about the copies, how it handles offenders, and the detailed procedure against the infringing importation are given there. This is the act of 1911. There has been no case occurring in either British or American courts covering the instance of importing for use a foreign original that had been reprinted. But in 1896, under the operation of two laws that had very similar provisions, as I will show you, there was a case where, while the issue was not that of importing for use, nevertheless it was commented on by all the judges concerned. That is the very well known case of Pitts v. George, decided in 1896. A musical composition, first published and copyrighted in Leipzig and reprinted and copyrighted in England by authorization, was brought in the original edition into England by an importer for sale. The owner of the British copyright sought to enjoin the importation of the German original into the country where reprinting had occurred, for sale. The lower court, consisting of a single judge, Justice Kekewich, allowed the importation to stand. Mr. BLOOM. That is, for sale? Mr. RANEY. For sale. He allowed the importation to stand. In his opinion, he quoted the fact that there were apparently two laws applicable, the law of 1842 and the law of 1844, either of which would allow the introduction of this foreign original for sale. The law of 1842 had prohibited importation into any part of the British dominions, for sale or hire, of reprints made outside the British dominions. That has not anything to do, of course, with an original; that is a reprint. You could not bring in the reprint of a work that existed in the original in England, if for sale or hire. The law of 1944, not specifically repealing that section 17 of the act of 1842, in section 10 absolutely prohibits importation without assent of the British copyright proprietor" of all copies printed or reprinted in any foreign country, except that in which such books were published." Both these acts, therefore, apparently agreed in allowing the importation of the original-for use, certainly. Mr. BLOOM. Mr. Raney, are you going to connect that up with these sections 30 and 31 The only thing that you are concerned with is for use, is it not? Mr. RANEY. Yes. That was his argument. That, as the first act prohibited the importation for sale or hire of reprints, this was not a reprint but the original; and as the second act prohibited any importation except the original (and this was an original) it could clearly be admitted. That case was appealed and came to a higher court, consisting of three judges; and there the decision was reversed, on a 2 to 1 vote that making two justices against two in the total number. The argument of the higher court was that the second act, the later act of 1844, in section 10, was not a complete code of importation, and as section 3 of that same act had said that the international copyright act intended to give to a British author the same privilege of controlling the international copyright as it had previously given in the act of 1842 for domestic copyright, it was quite evident that control of importation was intended. Now, both of the judges in the majority made comment in extenso, and here is what Lord Justice Rigby said. He was one of the judges who participated in the majority ruling. He remarked that the act of 1842" provides only against importation for sale or hire. A book lawfully printed abroad might, so far as this act. was concerned, be lawfully imported by the owner of it for his own private use though not for sale or hire." And, in referring to the international copyright act of 1838, remarked that by it "the importation of books otherwise than for sale, as, for instance, for hire or for the private use of the importer, was not struck at." And, in considering the reasons for the enactment of 1842, said "it may have been thought undesirable to go so far as to prohibit importations for private use from the country of origin, where many persons might be expected to purchase the books honestly and fairly for private use. Lord Justice Lindley said, referring to section 17: This section, however, is confined entirely to printed books composed or written or printed and published in the United Kingdom. It does not apply to other books. And referring to both section 17 and section 18, said: Neither of these sections prohibits importation for private use, but only importation for sale or hire. Therefore, no matter which court was correct in interpreting the particular case at issue, they were unanimous in saying that the two acts did not interfere with importing the original for use, 'as against sale or hire. The CHAIRMAN. That was a statute, as I understand, Mr. Raney, passed in 1840? Mr. BLOOM. In 1842. The CHAIRMAN. In 1942, in England? Mr. RANEY. It was a court decision of 1896. The CHAIRMAN. Upon a statute passed in 1842? Mr. RANEY. The statutes of 1842 and 1844 were being discussed. Well, since that time the law of 1911 has come along. The CHAIRMAN. Well, let us get down to the present act. What is the law of England now? Mr. RANEY. That is what I read. There was this same provision as to importation "for sale or hire" that had also been in the act of 1844, and which was also in the act of 1842; and it was apparently with this recent decision of the court present in mind by those who framed that act of 1911 that it was passed. It is the apparent intention of that act to allow the importation of unauthorized foreign originals for use, as against sale or hire. Mr. BLOOм. You suggest that we should take into consideration the copyright laws of England. Do they take into consideration the copyright laws of the United States when they pass their legislation over there? Mr. RANEY. Not at all. Mr. BLOOM. Well, do you not think that we should just take into consideration the thing that is before us at the present time? Mr. RANEY. Precisely. But then the practice of England has been repeatedly given as the one that is desirable to be followed; and it is specifically stated that one section of the English law is copied into this new measure. Mr. BLOOM. But not in sections 30 or 31? Mr. RANEY. Yes; section 31 is a rough reproduction of the English statute, section 14 (1) that I read last-but without the language "for sale or hire." Mr. BLOOM. Well, would not one of the branches of the library be using it for hire? Mr. RANEY. No. Mr. BLOOM. In some libraries there would be books for hire, would there not? Mr. RANEY. No. Mr. BLOOM. You represent the libraries, do you not? Mr. RANEY. Yes. Mr. BLOOM. Well, not all the libraries may be for use? Mr. BLOOM. Well, are there not some circulating libraries that hire books out? Mr. RANEY. They are not covered by this section. It is only institutions of learning that are covered. They are specifically named, and the circulating library would not come under the benefits of the measure. Mr. BLOOM. Well, there are some of them that do that? Mr. RANEY. There are plenty of circulating libraries. But those are not the libraries that would be covered by any benefit, either under this measure or under the existing law. The character of the libraries is clearly defined in the present law, and in both of these measures here at issue. We are, therefore, merely asking for the continuance of the privilege which we have always had, in the first place, and which is a privilege apparently accorded in Great Britain. And now I want to read to you the provision in the law of Canada, just across the border from us. Those same three sections that I read from the British law are embodied in the Canadian act. It is phrased a little differently; but they say the same thing. And following those three provisions, there is this provision: 27 (3) Notwithstanding anything in this act it shall be lawful for any person (a) To import for his own use not more than two copies of any work published in any country adhering to the convention. (b) To import for use by any department of His Majesty's Government for the Dominion or any of the Provinces of Canada, copies of any work, wherever published. (c) At any time before a work is printed or made in Canada to import any copies required for the use of any public library or institution of learning. (d) To import any book lawfully printed in the United Kingdom or in a foreign country which has adhered to the convention and the additional protocol thereto set out in the second schedule to this act, and published for circulation among, and sale to the public within either. The "convention" there referred to, of course, is the International Copyright Union. There, you see, is the privilege given in Canada for the individual to get for his own use two copies of any work published in the International Copyright Union. And under (d), if we were a member of the International Copyright Union, and had the same privilege, we could have the opportunity to bring in any book lawfully printed in the United Kingdom, as under the Canadian act. I could quote the acts from other countries as well. But I might conclude the citation of parallels with the bill that is now pending in the Canadian Parliament. The measure that is now the law in Canada was born of a labor government. It is a different government that is now considering a revision, and this is the provision of the pending measure of the corresponding act in England: Notwithstanding anything in this act it shall be lawful for any person: (a) To import for is own use not more than two copies of any work published in any country adhering to the convention. (b) To import for use by any department of His Majesty's Government for the Dominion or any of the Provinces of Canada, copies of any work, wherever published. (c) To import any copies required for the use of any public library or institution of learning. That bill is pending in Canada now. And you see it is in keeping with the provisions of the existing act, summarized slightly. Now, let me point out, in conclusion, the difficulties in the way of carrying out and complying with the sections 30 and 31: The proposal of these two acts, in brief, is (1) to forbid entirely the importation of any foreign, though legitimate edition of an American work; (2) to require that orders for the original edition of a foreign English work reprinted here be sent exclusively to the proprietor of the United States copyright, though used copies, foreign newspapers and magazines, foreign language books, collections in bulk, travelers' books, motion pictures, motion-picture photoplays, raised print, and books for the United States are made exempt. Not even the author himself, under the first requirement therenot even an American author himself could bring in for his own use, as that act is drawn, a single copy of his work that is reprinted on the other side. I think it is quite right that there should be this much of a change in the Solberg measure, so far as that goes; we should not allow the trade to be able to import a foreign reprint of an American author's work; but it is a useful and wise provision to allow an institution, as under the existing law, or an individual to import for use and not for sale a single copy of the foreign edition of an American author's work. Mr. BLOOM. Even if he could get the same thing here just as good, the same kind of a book printed in this country, you say that you should be permitted to buy that abroad? Mr. RANEY. That can be done now under the existing law. And I think it is a wise privilege. For what actually happens is this: Every institution of any importance that will be making such purchases will be mainly interested in the original, no matter what that is. He will get his home copy before he goes any further. If he wants the foreign reprint at all, it is for the purpose of comparison; and if that reprint be a cheap one (which is the kind that causes the chief peril) it is unfit for library use; it would soon wear out. They are not interested in cheap reprints. So there would be no large quantity of them coming in. And that is what happens now; that is the present law; and nobody claims at all that there is any serious importation of foreign reprints of American authors' works. I have talked with the head of the order department of the public library in the United States spending the largest amount of money, and he said that he could not recall in his 10 years' conduct of that department, a case where he had imported for that library a foreign copy of an American work. Mr. BLOOM. Do you mean to say that the libraries which you represent would prefer buying a book abroad for libraries that are supported by the people of the United States, who pay for the upkeep of these colleges that they would prefer to buy a book abroad, when the same book could be bought in this country and published in this country? Mr. RANEY. I have said the contrary. I have said just this moment, as clearly as possible, that I thought Mr. BLOOM (interposing). I just wanted to get that clear. Mr. RANEY (continuing). That the great preference is for the original, no matter what that is. It would be for the original, if it was an American work. It would be for the original, if it was an English work. But I am discussing the first provision, which would completely bar anybody, even the author himself from importing any copy of a foreign reprint of an American work. Now, the trade should not be able to get that; and they can not get it now. An individual now under the American law can not buy a foreign reprint of an American author's work. There would be so few that would do so that it would certainly be a mere bagatelle; and certainly there would not be any machinery to enforce it-as there is none now. So that that is a small matter. It is not worth fighting over, really. But that is the provision of the present law; and that is the provision that is proposed here by this bill. Mr. PERKINS. Can you give us any idea of the extent to which that importation exists at the present time? Mr. RANEY. I think it is extremely small. There is no real way to get at it. I just instanced the fact that the head of the order department of the largest buying public library in the United States said that he did not know of a single instance in his library in 10. years' time. It is evidently very small and where cases of that kind arise it is probably done by some special scholar who is interested in textual criticism, where he wants to compare the two editions, and therefore wants to obtain both. The cases of that kind would be so few that the privilege could very well be continued as under the present law without hurting anybody. |