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It really needs very few words. The thing was discussed fourteen months ago in our previous hearing, and we pointed out that if you should put in an American copyright law the requirement that every copy printed, whether it might be in England or Australia or Kamchatka, irrespective of those published in this country, must bear that notice of entry of copyright, or failing that, that there should be a forfeiture of copyright, you would undertake to compel people who are under no penalty if they obey the United States law to do something which if they did not do it would not bring any penalty upon them, but would forfeit a copyright, a property belonging to the American citizen, the author, and a property in which the American manufacturer, the publisher, had a joint interest.
That is the theory of the thing, and I think is the theory which to you experienced lawmakers is conclusive. You can not undertake to order a man in Australia to do a thing on penalty of doing which a group of American citizens should lose their property.
As to the detail of the enforcement of it, I can say, with forty-four years' experience as a publisher, that it is a regulation that can not be enforced. However strictly we might make arrangements on behalf of others, acting with foreign publishers, acting sometimes in Great Britain, sometimes throughout the whole continent, or in the colonies, for this particular detail to be carried out of the printing of a copyright notice in the back or title page of such book, there would be not only no possibility but no practicability of that being carried out to any extent. During the working of the present statute we have made such contracts with honorable English publishers that the requirements of the American law in this detail should be complied with. They have to some extent succeeded in getting those instructions carried out by printers. They have been carried out in London. They have failed to get them carried out by printers working in Australia, because they sell the right for a subsidiary edition to be published in Australia, and the farther away you get this attenuation of the original contract obligation, the greater, not the reason but the certainty, that it will not be carried out.
Representative CURRIER. You favor the bill as it is?
Mr. GEORGE H. PUTNAM. I favor the bill as it is. We have had examples in this country of copies brought in; in one case from Australia, some sixteen years back, of a book printed in Melbourne, which did not contain the notice of American copyright. There was some question as to how the present law could be interpreted, and the courts decided that the intention of the existing statute, while it was not clearly worded, was evident that the lawmakers could only have undertaken to make laws for the people of the United States. In case that should be so left, if the innocent importer, the man who might possibly find the book in a library did suffer, that would entail much smaller risk than the certainty of injustice to the great group of American authors and those who have interests connected with American authorship. I am speaking of a chance importation. I am not speaking of the case where books have been imported from the other side for the purpose of making an unauthorized edition here. It is that kind of a case that the Supreme Court has recently passed upon.
The other matters having been referred to, gentlemen, I will merely speak of them as they were reshaped somewhat in Mr. Ogilvie's wording. He gave you a mythical case of an author who might have paid
the entire cost of the production of his book, where he or his widow or children after him might fail, on the ground of some requirement for a joint application for this renewal of copyright, to secure the benefit of such renewal. Mr. Ogilvie, with his experience as a publisher, should know that when an author pays for his book he owns the copyright as well as the book.
Representative CURRIER. You said author. You mean publisher. Mr. GEORGE H. PUTNAM. Possibly, but I think I meant author. The clause as arrived at not only by one of the representative authors, but by the authors and publishers, talking together in New York and elsewhere, for that extension of copyright, made it quite clear that where the ownership of the copyright, the royalty, had been preserved by the author himself, which is the case, say, nineteen times out of twenty, the author alone should have the full advantage of the extension of copyright, the full right to exclude the original publisher from any further publishing of the book after the first term of copyright had terminated, although such possible exclusion of the first publisher would involve the risk of the forfeiture of large investments in electrotype plates and in publishing appliances which have been built up at great expense and long years of labor.
The authors and publishers, in their desire to meet this very natural requirement on the part of the authors, were prepared to risk that provision being canceled altogether, as it would be canceled if the author decided at the expiration of the term of agreement to make an agreement with another publisher. The only reservation that the authors assented to very fully-Mr. Johnson is not speaking individually, but represents the consensus of opinion of all the authors back of him and all the authors represented by our association, some thousands of authors-was made in the case where the copyright had been sold outright.
Representative CURRIER. You say you are willing, where the author has reserved a royalty, to provide that if the book has lived through the forty-two years, then he is perfectly free to make any contract he pleases?
Mr. GEORGE H. PUTNAM. Yes, sir.
Representative CURRIER. But only the author who has sold his copyright outright to the publisher?
Mr. GEORGE H. PUTNAM. That is the second class. You have named the first class.
Representative CURRIER. Now, the author who has profited the most from a popular book must be the man who has had the royalty all the time, and the man who has profited the least from a book popular enough to have lived for forty-two years must be the man who has sold his copyright outright?
Mr. GEORGE H. PUTNAM. That is true with certain books, but not with the majority of books. I have in my basement books for which I have purchased the copyrights at what the author thought to be the market value which have turned out to be a large loss.
Representative CURRIER. That is ordinarily the case of a book of which anybody would want the renewal ?
Mr. GEORGE H. PUTNAM. That is true. The Innocents Abroad is one case in a hundred thousand. There are such books, and I admit there would be such cases; but the property I have in mind more particularly, the property which would be confiscated without consideration-I could hardly say without due process of law, if you gentlemen
make the law so about it, but it would be without due, equitable process of law-would be more particularly, as I pointed out, the investment in composite works, which form ninety-nine one-hundredths, I should say, of works having any continuous value whatsoever, of the class where the purchase is made outright; and to have those copyrights provided and to have the publisher thrown out by exclusion not merely from having an open market, but forbidden to sell at all if this copyright were renewed, and if he did not succeed in making arrangements with his several hundred authors
Representative CURRIER. I think in the case of a composite work the point you make presents a very strong case for the consideration of the committee.
Mr. GEORGE H. PUTNAM. There are millions of dollars invested in such works which, if this law is worded as you two gentlemen have worded it, instead of the change as Mr. Kittredge accepted it before, would be subject to confiscation. That represents American manufacturers' work, publishers' interests.
Representative CURRIER. As I have it in mind, I should very quickly deal with your proposition where you touch composite works, where you have to deal with a hundred authors.
Mr. GEORGE H. Putnam. The Innocents Abroad case is a very good illustration. The instance is with your contention.
Representative CURRIER. What you have said in regard to the composite works appeals very strongly to me.
Mr. GEORGE H. Putnam. That is the real class, sir.
Mr. GEORGE H. Putnam. I will attempt to do that, to make that distinction.
I do not think I need to delay you at this time of the evening with any further remarks.
Mr. Hale. Mr. Chairman, I am down here principally to speak about that renewal provision, but as the hour is late, I would like to speak upon it to-morrow.
The CHAIRMAN. I here will be a good many other things to-morrow. You had better speak on it now.
STATEMENT OF MR. W. B. HALE, REPRESENTING THE AMERICAN
LAW BOOK COMPANY.
Mr. HALE. I represent the American Law Book Company, which is the publisher of the Encyclopedia of Law and Procedure, a legal work to be published in 40 large volumes, of which some 25 are published now. The investment is probably $1,000,000 in that one work. We also publish dictionaries and works of similar character.
Those books are compiled by publishers, by an employer who employs a number of authors to write those books. In such case the publisher is really, in a very strict sense, the author of those works. Legal digests are also of the same character. Take the Century Digest. That is founded on section 24 of the Kittredge bill, the right to renew. I suggest a simple amendment which, I think, carries out the view which Jr. Currier has expressed. Section 24, providing the terms, classifies works into three classes, (a), (b), and (c). I would insert in the first line of section 26 of the Kittredge bill, after word "work," the following: "specified in section 24, subsection (c) of this act.”
In other words, if you insert that in the renewal clause, then only the works specified in section (c) may be renewed by the author. That would absolutely meet the objection, so far as all the compiled works are concerned. It would unmistakably exclude them from this extension.
That is my suggestion. I think that would be a very simple solution, to expressly exclude them from the right of renewal.
Representative CURRIER. It does seem to the committee that subsection (b) takes care of the thing pretty effectually. It wipes out the renewal period of fourteen years after the twenty-eight.
Mr. Hale. That is, under section 24, as a whole, there is no renewal for copyrights obtained under this act; but as to existing copyrights, they may be extended for the full term provided by the act, and then it speaks of authors. These joint authors of composite works have always been treated by publishers as having the right of renewal, and those books have always been renewed by virtue of the right of the authors, the men who compiled them. That is the only way under the present law that a proprietor can get the renewal term. The contract covers it usually, but they get it from the author.
Representative CURRIER. In the case of a composite work, does not the contract always cover the renewal period? Would you think anybody would employ a whole lot of authors to create a composite . work and not, by contract, provide for the renewal period?
Mr. Hale. But it is only possible to cover the right of renewal of the actual author. The right of renewal is contingent. It does not vest until the end. If he is alive at the time of renewal, then the original contract may pass it, but his widow or children or other persons entitled would not be bound by that contract.
So I think the simple way would be to expressly exclude that class of works from the right of renewal.
Then there is one other point in this connection. I am speaking on the Kittredge bill now, which has a provision for the joinder of the assignee or licensee with the author in certain cases. I have no objection to that. I favor it, although the interests I particularly represent would be satisfied with the other part.
Representative CURRIER. So far as the interests that you represent are concerned, they do not care to have that made general, but simply to apply to composite works?
Mr. Hale. Simply to apply to composite works.
Representative CURRIER. Let me ask you, as representing publishers of that kind, whether you prefer the old term or the term given in this bill?
Mr. Hale. We would prefer a straight-out copyright for the term given by this act, speaking only for my own clients.
Now, addressing myself to the provision of the Kittredge bill which provides for the joinder of assignee or licensee under certain circumstances, there is another case that falls within the intent of that, but is not within the letter. That is the case of a copyright taken out by a proprietor. The proprietor becomes such before there is any copyright. He is neither an assignee nor a licensee of the copyright. The assignee and the licensee are the only persons spoken of in this section; so I think that should be amended by the insertion of words so as to include the proprietor, provided the clause is adopted at all.
I think there is no dispute about it. He would be excluded by the letter of the act, although it is plainly within the intent.
We consider it of great importance to composite works that that matter be made perfectly definite and clear.
• There is another verbal criticism I should like to make in section 6 of the Kittredge bill, which also relates to compilations, abridgments, etc.
The CHAIRMAN. I think it is the same in the other bills.
Mr. HALE. Yes; it is the same in all the bills. I heartily agree with and am in favor of that section; but in line 12, in lied of the words but no such copyright shall effect the force or validity," etc., I would prefer to substitute these words: and the publication of any such new work shall not affect the copyright,” etc.
That is to meet this situation. It is the publication of a book without copyright protection that forfeits the copyright, or the publication of a book without proper notice, or anything of that kind. Under the act, as it stands now, it says the copyright shall not affect it. I would like to meet the case of a new compiled work, within the meaning of this clause, that is not copyrighted, or where, by reason of some accident the copyright fails. That should not affect the original copyrights in the works that have entered into and formed a part of this new compiled work. It does not change the intent of the section in any way.
STATEMENT OF MR. GEORGE W. OGILVIE.
Mr. OGILVIE. Mr. Chairman, Mr. Putnam spoke with reference to the notice and the impossibility of securing its insertion. If he has any trouble of that kind, let him set the title page for the book which he intends to publish abroad with the copyright notice, send the plate with the contract, and require that that plate be used in every copy published or, in case it is smashed in printing, that a duplicate be sent. That will cover the objection.
In reference to the ownership of a copyright of a book, the cost of producing which has been paid for by the publisher, perhaps not the last but among the last books that I have published was such a book. The copyright stands in my name, and that is not unusual. It is not mythical by any means. It is a fact.
The committee thereupon adjourned until Friday, March 27, 1908, at 10 o'clock a. m.
WASHINGTON, D. C., Friday, March 27, 1908. The Committee on Patents of the House of Representatives and the Committee on Patents of the Senate met conjointly at 10 o'clock a. m. at the Senate reading room, Library of Congress.
Present: Senators Smoot (chairman) and Brandegee; Representatives Currier, Barchfeld, Washburn, Law, Sulzer, Legare, Pratt, and Leake.
The CHAIRMAN. Mr. Johnson desires to make a statement and also to present arguments to be inserted in the record. The committee will be glad to hear him.