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Representative SULZER. So far as I am concerned, I would make the penalty fit the crime.
Representative LEGARE. Why do you object to the term “willfully and knowingly?"
Mr. Johnson. Let the burden of proof be upon the party charged with the infringement to show that he did not willfully and knowingly infringe. This is the situation
Representative LEGARE. Put the burden of proof upon the defendant?
Mr. JOHNSON. Because he alone has that information under his control.
Representative LEGARE. You are willing that the words shall remain in, but that the burden of proof shall be shifted to the defendant.
Mr. JOHNSON. Yes, sir; and for this reason: Take Mr. Klein's play, the Lion and the Mouse. The man who wishes to reproduce that play goes to this man in Chicago and says, “I want a copy of the Lion and the Mouse." All that it is necessary to do under the provision we suggest is to prove that that play of Mr. Klein's was bought from this play broker. If the words willfully and knowingly” remain in, all that the defendant has to say is, “I do not recollect from whom I bought that play. Somebody brought it in to me, and of course I can not keep up with the hundreds of plays that come in every day. I do not recollect where I got it. I simply put it back here, and somebody wanted it and I sold it.” As a matter of fact, of course that play cannot be procured by any person except for the specific purpose, or would not be procured, except for the specific purpose of piracy, because it is a troublesome proposition to secure a copy of the play. It means that they must have a stenographer accurate enough to take down the lines. They must have some one sulliciently familiar with theatrical productions to note the scenic effect and the costume effect and to secure a general description of the play. It is put out in such form that any company or any persons who desire to put it on by any organization can do it. No person can copy it or would ever think in a thousand years of copying or getting a copy of the play except for the specific purpose of turning it over to some other person who expects to produce the play and to produce it without paying any royalty to the author. With the words “willfully and knowingly" in, we can not do anything unless we can catch the manager who pirates the play, bring him back to Chicago, and force him in Chicago to testify as to the purchase from this particular man. To begin with, we have no authority under the law to bring a witness from one State to another in such a prosecution, and we could not get sufficient evidence to maintain the prosecution.
Representative McGavin. Whether “willfully and knowingly” are in the bill or not, you would have to prove the intent.
Mr. Johnson. If he sells for profit? That is the proposition. If he takes a copyrighted play, unpublished, and vends that play
Representative MCGAVIN. That would be a circumstance.
Mr. Johnson. Then put the burden on him to show that he did not willfully and knowingly steal a copyrighted play.
Representative LEAKE. Under the willfully and knowingly clause you must also prove that when he purchased it he knew the play was
Way Down East, pirated under some other name. That is an additional difficulty:
Mr. Johnson. It makes it almost impossible to secure sufficient evidence to obtain a conviction.
Representative CURRIER. You must realize the difficulties the committee would have when this matter shall come up in the House with a provision in the bill which shifted the burden of proof.
Mr. Johnson. I would suggest that the clause go in leaving out ' willfully and knowingly."
Representative CURRIER. Where is that?
Representative CURRIER. You would suggest that we strike out the words “knowingly and willfully" in line 21?
Mr. JOHNSON. Yes, sir. "Representative CURRIER. I do not see that that alters it very much.
Representative LEAKE. Would not the striking out of the word “knowingly" and leave it “ willfully,” accomplish your purpose ?
Representative CURRIER. You could not do it knowingly without doing it wilfully.
Representative LEAKE. “Knowingly” is the term under which they say, in order to bring about a conviction, they must prove that the defendant knew the play was a copy of a play of another name.
Representative CURRIER. In order to get a conviction for a willful violation of this act you would have to show that.
Representative MÖGavin. You would have to show the intent.
Representative Law. Do you think you could get a conviction if you struck out those words?
Mr. JOHNSON. I should like to have the section read in this manner: That any person who shall for profit transcribe or procure the transcribing in whole or in part of any work not printed or reproduced for sale by the author or owner thereof or who shall vend any copy, in whole of in part, of any work not printed or reproduced for sale by the author or owner thereof, or who shall willfully, and for profit infringe, etc.
Then follow with the section, changing the section in no particular except the penalty. Then I would suggest the shifting of the burden.
Representative Law. Striking out those words would not shift it. You would have to prove it.
Mr. Johnson. All we would have to prove was that the person bought a pirated play, which had been purchased from this particular man.
Representative McGavin. You would have to prove that he did so willfully and knowingly. There is no crime under the law without intent.
Mr. Johnson. That is very true
Representative Law. The only way would be to provide specifically that the burden of showing that it was not knowingly and willfully done should be upon the defendant.
Representative McGavin. That would be unconstitutional.
The CHAIRMAN. I should like to say that before adjournment this morning we would like to hear from Mr. Clark.
Mr. Johnson. I shall be very glad to yield. I thank you, Mr. Chairman. Other than the talking pictures, I think that is all.
STATEMENT OF MR. JOSEPH I. C. CLARKE.
The CHAIRMAN. Mr. Clarke, whom do you represent?
I wish to ask, sir, if the arrangement for the division of time which you have made as to discussing various points covers a feature to which I wish to call attention. In the first section of the Barchfeld bill
The CHAIRMAN. We do not want to take up the Barchfeld bill now.
Representative CURRIER. That is in every bill in exactly the same words.
Mr. CLARKE. We wish to have something to say on that section'at the proper time.
The CHAIRMAN. The proper time will be when we take up the question of the reproduction by mechanical devices. The principle you wish to speak on here is also involved in that principle. So we would rather you would take it up later.
Mr. CLARKE. You wish to reserve that?
Mr. CLARKE. Mr. Chairman and gentlemen, I should like to say to the combined committees that the dramatists feel under a good deal of obligation to both the committees for the way in which they have dealt with the greater part of the matters pertaining to the dramatic copyright. Although what I have to say for just this minute is not in the way of fault-finding, I presume the necessity will not be ungratifying. We are particularly glad of that section with relation to the nonimpairment of the rights at common law. We are very much pleased indeed with the section abolishing the need to print for the purpose of the copy. As I will explain a little later on, that section as it stood in the old law was very embarrassing to the author, and we thank both committees for changing it as they have done. We are also thankful for the extension of the life of the copyright granted by section 24. We think it is far more just than the old law. I refer to the extension of the period of the copyright and the provisions for repetition. I presume they are the same in all the bills, are they not?
The CHAIRMAN. I believe they are virtually the same. Mr. CLARKE. I wish to call attention to section 28, division 4: In the case of a dramatic or dramatico-musical or a choral or orchestral composition, $100 for the first and $50 for every subsequent infringing performance; in the case of other musical compositions, $10 for every infringing performance.
That is the paragraph in the Smoot bill. We have to say on that that this penalty is simply a reproduction of the law of 1856. At that time the subjection to a claim for damages for $100 for the first performance and $50 afterwards was a very fair and adequste claim to make. That is to say, it was as would be proper under such circumstances. It was a little in excess of what the author would have got at the time as royalty or reward for his work. But that time has gone by. In the intervening fifty years the emoluments have changed to a remarkable extent, so that with a successful play those penalties are really what you might call inadequate. In other words taking the most successful plays, a pirate could afford to pay $50 a
performance, and he would still be a long ways ahead of what he would have to pay if he dealt with the author.
The CHAIRMAN. Let me ask you a question. Have you in mind now a single case of that kind, where a pirate took a play and paid a fine rather than pay the author the royalty stipulated by him?
Mr. CLARKE. I have not, and naturally I was only supposing a case.
Mr. GEORGE H. BROADHURST. I am the author of the Man of the Hour, and it would be very much cheaper for a man to pirate my play under these terms than to pay me my royalty, specifically speaking
Representative CURRIER. With an adequate penal remedy you would never resort to the civil remedy?
Representative LEAKE. You would prefer to exercise the right to send a man to jail ?
Mr. BROADHURST. Yes, sir.
Representative CURRIER. If that is taken care of you would not care anything about that section. You would never bring a civil suit if you had an adequate criminal provision?
Mr. BROADHURST. No, I would not.
Representative CURRIER. We do not need to take much time on that.
Mr. CLARKE. I wish to say that in this particular there has been nothing pushing the matter toward the present day at all. It is an antiquated limitation, and it ought, in common justice, so long as it is retained at all, to be advanced in some particular. I do not think we ask anything beyond the $5,000 limitation for a single offense, but we think the $100 and the $50 'should be at least doubled.
The CHAIRMAN. That would be rather excessive for a choral composition.
Mr. CLARKE. Perhaps for a choral composition, but for a dramatic composition it would not be. I hope it is understood that we wish those penalties to be doubled, but not the maximum, to leave the maximum as it is. · The ('HAIRMAN. Your request will be considered.
Mr. CLARKE. In the matter which appears in the Smoot bill as section 31 and in the Barchfeld bill as section 30, which I think you
have referred to before as the penalty clause, I wish to say that the authors are very strongly in favor of the wording as it appears in the Barchfeld bill. If I may be allowed a few minutes, it would be very pertinent to give a very brief history of the inclusion of the imprisonment clause in the copyright law.
The CHAIRMAN. So far as that is concerned, I do not think you had better take up that, because I do not think there will be any difficulty about it.
Representative LEAKE. Do you know who drew the Barchfeld bill? Did the authors draw it?
Mr. CLARKE. No.
Mr. CLARKE. Probably Mr. Barchfeld. We are not in the know on that.
Representative SULZER. Mr. Barchfeld is sitting right there. As I understand, you prefer section 30 of the Barchfeld bill to section 31 of the Smoot bill.
Mr. CLARKE. Yes, sir. If both of the committees are one
Representative CURRIER. Let me say that in the House Committee on Patents at the last session of Congress that was the most drastic provision that the committee would report out. It does not represent the views of many members of the committee, but we had to make a concession in order to report a bill.
Representative SULZER. You need not pay very much attention to that, Mr. Clarke.
Mr. CLARKE. I hope the committee is of an open mind.
Mr. CLARKE. İt is with that view that I want to present a few facts about the imprisonment clause. If the committee are of a mind to adopt the Barchfeld language, we are not particular how you arrive at it.
Representative CURRIER. The committee can not commit itself to any proposition, but you need not go into the history of this.
The CHAIRMAN. We have thrashed it out time and again.
Mr. CLARKE. I wish to make this statement: The imprisonment clause which was imbedded in section 1966 of the Revised Statutes
Representative CURRIER. That was the first time the penal feature ever appeared in the copyright law.
Mr. CLARKE. Yes, sir.
Representative CURRIER. And there is no penal feature in the patent or trade-mark laws.
Mr. CLARKE. The insertion of that in the Revised Statutes was not arrived at in any snap-judgment manner. It was fully debated in Congress, and it was thrashed up and down under the condition which existed then, and which exists in intensified form now. The imprisonment clause is absolutely necessary for the protection of copyrighted plays.
I wish to add to that, sir, the fact that since the passage of the copyright law, it has been embedded in the statutes of 14 of the principal States of this Union. In 1899 it was placed upon the statute books of the State of New York, and stands there with the signature of Theodore Roosevelt, governor of that State.
Representative CURRIER. That is so with the trade-mark laws of the various States. It is not so with the trade-mark laws of the United States.
The CHAIRMAN. Or the patent law either.
Mr. CLARKE. The work which the dramatists sought to have protected under this clause is a very transitory thing in the way of securing the emoluments coming to a dramatist. As has been said here before, it is only the successful play that is stolen. The successful play comes perhaps once in the lifetime of an author. If it comes more than that, he is exceptionally lucky or exceptionally great, and it appeals no doubt to the sense of justice of Congress to give him the protection which he should get during that brief time. It is during the first two or three years of the life of a successful play that the pirate exists and makes his gains, and it is during those two or three years that the author wants to be protected and protected properly. These fly-by-night companies, these people without assets, with nothing but the clothes on their backs, who fly from one place to the other, by their inadequate performances not only rob the author of royalties, but they tend to spoil the market when the genuine author's production comes along.