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REVISION OF COPYRIGHT LAWS.
COMMITTEES ON PATENTS,
SENATE AND HOUSE OF REPRESENTATIVES,
Washington, D. C., March 26, 1908. The committee met at 10 o'clock a. m. in the Senate reading room, Congressional Library.
Present: Senators Smoot (chairman), Brandegee, and Gary, of the Committee on Patents of the Senate; also Representatives Currier (chairman), Barchfeld, McGavin, Law, Sulzer, Legare, Pratt, and Leake, of the Committee on Patents of the House of Representatives. The CHAIRMAN. I should like to say to those who are interested in this proposed legislation that while no definite programme has been mapped out, there has been discussed and tentatively agreed to a plan of procedure. We will take one of the bills for instance, Senate bill 2499, and we should like to have the parties who are interested in the different sections of the bill and have objections to that bill to make their objections known, and we will take up the sections so designated for consideration. All the other sections of the bill to which there may be no objection will be passed by, with the understanding of course, that all agree to the provisions of the unobjected sections.
I will state, however, that if any one comes in later who is not present this morning, and objects to any section, we will gladly hear the objections. The letters which I have in my possession object to the following sections in Senate bill 2499: Sections 1, 4, 10, 13, 14, 16, 17, 25, 27, 31, 33, 34, 44, and 46.
Gentlemen, if there are any other sections which are objected to by anybody present, we should like to have them make manifest their objections at this time.
Mr. MAWSON. I should like to inquire to which bill the objections which you have referred to apply.
The CHAIRMAN. My remarks have reference to Senate bill 2499, known as the Smoot bill.
Mr. NATHAN BURKAN. I wish to suggest an amendment to section 40 of the bill.
The CHAIRMAN. As to many of these sections it has been thought that very little would be said, while as to others considerable time will be taken in their discussion. I have thought, which has met the concurrence of the chairman of the House Committee on Patents, that perhaps there should be some division of time as to these different sections. We have thought that perhaps to-day and to-morrow should be taken up with the consideration of the sections other than those referring to the musical provisions of the bill, and that Saturday should be given over for that particular question, and that on Saturday there should be some division of time between those who are in
favor of the so-called Kittredge bill and those in favor of the socalled Smoot-Currier bill, or those who oppose them altogether and have some other proposition to present.
Representative CURRIER. May I suggest in this connection that we will expect gentlemen representing each side to arrange among themselves for a division of the time?
The CHAIRMAN. I thank the chairman of the House Committee on Patents for his suggestion.
I wish to say, so far as the committees are concerned, that we want to obtain during these hearings all the information obtainable, and that if hearings during the daytime are not sufficient, we are perfectly willing to take the evening for them.
I wish also to announce that to-day, at the adjournment of the morning meeting, at 12 o'clock, we will ask you to come here this evening at 8 o'clock, because this afternoon the Senate has under consideration what is known as the Aldrich currency bill, and there will be votes upon various amendments to it, and it will be almost impossible for members of the Senate Committee on Patents to be absent, and I have been given to understand also that it is very important, so far as the Members of the House are concerned, that they shall be present at the session of the House this afternoon. Therefore, if there is no objection, when the meeting adjourns this morning, we will adjourn to meet here in this room at 8 o'clock to-night.
Mr. BURKAN. In making objection to section 40, I refer to the Kittredge bill. I find in your bill it is section 41.
The CHAIRMAN. We will call it section 41 instead of section 40. Mr. ALBERT H. WALKER. Am I right, Mr. Chairman, in understanding that the Currier bill and the Smoot bill are identical? Representative CURRIER. Not absolutely.
The CHAIRMAN. There are two or three differences, I think. ·
The CHAIRMAN. Nearly the same.
Mr. WALKER. Am I also right in understanding that the Kittredge bill and the Barchfeld bill are nearly the same?
The CHAIRMAN. Nearly the same. differences between those bills.
I think there are two or three
Mr. DENNIS F. O'BRIEN. Mr. Chairman, in the division of the subject as you have indicated it, if the interest of those who are concerned primarily in the musical part, so-called, should be affected by such legislation as the musical people ask for, will they be free to present their arguments upon that point outside of the time that has been specified for the musical part, so-called?
The CHAIRMAN. Whom do you represent?
Mr. O'BRIEN. I represent Mr. George M. Cohan, the composer. He finds certain conditions now existing in his field of endeavor which threaten his property interests.
Representative CURRIER. His property interest is in the musical composition?
Mr. O'BRIEN. Yes, sir; but also in the dramatic composition, which is a part of the musical, also. Can he touch upon those things to-day or to-morrow?
The CHAIRMAN. I would not want him to touch that subject at all until we come to it, and that I think will be Saturday.
Mr. O'BRIEN. Then I understand he will present his side of the
The CHAIRMAN. Whatever he has to say in relation to other sections he may say, but we do not want him to present the music question until Saturday, when the whole subject will be gone into.
Representative CURRIER. We desire as far as possible to segregate it. Representative SULZER. At that time you can present both sides of the question, the dramatic and musical."
Mr. WILLIAM B. HALE. Will you please add sections 6, 38, and 39 of the Smoot bill?
Mr. WALKER. Will you kindly, for me, add section 28?
Mr. JOHN J. O'CONNELL. Mr. William A. Jenner and Mr. Edmund E. Wise, both members of the New York bar, wish to be heard in rela
tion to section 34. They can not be here to-day, and they ask me to request to set apart some time for them to-morrow. The CHAIRMAN. We will gladly hear them to-morrow. so inform them.
STATEMENT OF MR. GEORGE HAVEN PUTNAM.
The CHAIRMAN. Mr. George Haven Putnam, secretary of the American Publishers Copyright League, is present, and from a letter that I have received from him as a representative of the authors and the publishers he makes, I suppose, objections to as many of the sections as anyone interested; and perhaps it would save time, and it would be proper now, to ask Mr. Putnam to make whatever statement he desires in relation to the sections in which he is interested.
Mr. PUTNAM. Mr. Chairman and gentlemen, I will point out that our interests are in the main for the enactment of the substance of the provisions of the Smoot-Currier bill with certain changes, not many, but important, in which the provisions of the Kittredge bill differ from those adopted by your two committees. I will point out further, and partly with reference to the application on behalf of Mr. Jenner, which has just been submitted, that we are here more particularly to withstand the contention, as I happen to know from Mr. Jenner's printed argument, that he will desire to present, and, therefore, we will appreciate keenly the courtesy of speaking later in maintaining the bill against the objections, which will be presented here. Therefore, I may ask to be heard later.
The CHAIRMAN. That has reference to section 34-the importation clause of the bill.
Mr. PUTNAM. Yes, sir.
The CHAIRMAN. We shall be perfectly willing, after Mr. Jenner has made his statement objecting to it, to hear your answer. But as far as the other sections are concerned, as mentioned in your letter, the committee will be very glad, indeed, for you to proceed.
Mr. PUTNAM. I understand that the affirmative will have the final word against any personal objections, especially as to technical matters, with which the members of the committee may not be conversant.
Section 14 of the Currier and Smoot bills, page 1 of the pamphlet in parallel columns, which has been prepared in the Bureau of Copyright, imposes as a penalty for a failure to make deposits of copies within the time specified the forfeiture of the copyright. This penalty has
been objected to, and we should be glad if the recommendations of the register of copyrights, as submitted at the previous hearing, hold good in the final enactment. The forfeiture of the copyright for a technical failure is what obtains in substance in the present statute, but it obtains in no other copyright statute in the world. It is always, even in England, France, Germany, and Italy, a technical inadequacy. Representative CURRIER. You know the action very recently taken by the special committee on copyrights and trade-mark of the bar of the city of New York, of which committee Mr. Paul Fuller is chairman, regarding that matter. I am
Mr. PUTNAM. They have not reported their action to me. speaking in ignorance.
Representative CURRIER. They go very much further than the bill goes in the line of forfeiture. They recommend unanimously now that, unless within a certain limited time copies are deposited, the copyright shall be forfeited.
Mr. PUTNAM. I should not make any final objection to that, because as a fact the publishing house that is properly organized and in touch with the copyright office will have no difficulty. The objection I am submitting is rather on behalf of the authors, who are afraid lest some action which they can not control, some inadvertence outside of their direct responsibility might forfeit the copyright.
Representative CURRIER. Of course, you realize that a fine would be of no avail whatever in dealing with a foreigner. We can not enforce our penal statutes in Europe.
Mr. PUTNAM. It would be difficult, I admit.
The CHAIRMAN. I should like to submit to you the recommendation of the bar of New York referred to by Mr. Currier. This is the unanimous opinion of the bar.
Mr. PUTNAM. It should carry great weight, sir.
The CHAIRMAN. It is "that should the copies called for by section 13 of this act not be deposited, as herein provided, within one month from any part of the United States, except an outlying territorial possession of the United States, or within three months from any outlying territorial possession of the United States, or from any foreign country, the copyright shall be deemed forfeited." That is what they recommend. It may be well to insert in the record at this point their suggestions:
ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK.
Special committee on copyright and trade-mark: Messrs. Paul Fuller, William G. Choate, John E. Parsons. John L. Cadwalader, Henry Galbraith Ward, Arthur H. Masten, William A. Jenner, Franklin Pierce, Edward M. Shepard, James W. Hawes.
To the honorable the Committees of the Senate and House:
At a meeting of the special committee on copyright and trade-mark, held at the city of New York, on the 20th day of March, 1908, at which were present, Messrs. William G. Choate, William A. Jenner, Franklin Pierce, and Paul Fuller, chairman, the pending bills to amend and consolidate the copyright laws, were taken up for discussion, and the following recommendations to your honorable committees were adopted: Sections 13 and 14 of H. R. 243 do not compel at any time the deposit of two copies of a copyrighted work with the register of copyrights.
By the language of section 14, there is no obligation to deposit these copies, unless the register of copyrights should make a demand for them. In the opinion of the committee, this deposit should be obligatory, and they suggest, therefore, that lines 1, 2, 3,
4, and part of 5, on page 8 (section 14), be stricked out and that the section, as amended, read as follows:
"Section 14. That should the copies called for by section 13 of this act not be deposited as herein provided, within one month from any part of the United States except an outlying territorial possession of the United States, or within three months from any outlying territorial possession of the United States, or from any foreign country, the copyright shall be deemed forfeited."
Section 34 of the bill prohibits the importation of a foreign edition of a book copyrighted in the United States, even though the book has been copyrighted abroad by the author. There are several exceptions to this prohibition. Subdivision "e" paragraph first makes an exception for a single copy of such book imported for use and not for sale "under permission given by the proprietor of the American copyright." The committee is of opinion that this permission of the proprietor of the American copyright should not be imposed upon the purchaser of such a book. The purpose of the copyright law, in accordance with the provisions of the Constitution is to protect authors. In the case mentioned the author gets the benefit of his foreign copyright by the purchase of the foreign copyrighted book, and the scholar or seeker after knowledge, who desires the original work should not have imposed upon him the consent of any person to the exercise of that privilege.
The committee suggest that the words "under permission given by the proprietor of the American copyright," in lines 21 and 22, p. 19, be stricken out.
Section 44 of the law (p. 23, line 24) is declaratory of the prevailing rule of law as to which some question was raised at the preliminary conferences, to wit, that the copyright is distinct from the ownership of a material object. It has been suggested that the language of this section providing that the sale of the material object shall not constitute a transfer of the copyright nor the assignment of a copyright constitute the transfer of the title to the material object might be invoked to hinder and prevent the resale of any copyrighted books purchased from the publisher, and might be utilized to regulate and keep up prices of retail dealers.
Any such danger might be obviated by adding to this section the words "but nothing in this act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a work copyrighted under this act the lawful possession of which has been obtained." All of which is respectfully submitted in addition to the recommendations submitted to your honorable committees on the 15th of December, 1906.
Dated New York, March 21, 1908.
PAUL FULLER, Chairman.
Mr. PUTNAM. I have their wording before me, and I know the source from which it came.
The LIBRARIAN OF CONGRESS. The Publishers' Weekly is responsible for it.
Representative SULZER. Suppose instead of putting in the words "shall be deemed forfeited" we make it "may be forfeited," leaving it discretionary with the Librarian.
Mr. PUTNAM. I am not sure whether that would not impose a delicate responsibility. I submit the objection, which is not a final objection, on the part of the authors, and I will pass on, with your permission.
Section 16 includes as an additional manufacturing requirement, after the word "printing" the words "and binding," and there is an appearance of consistency in making the manufacturing requirement complete. I point out, however, as a practical binder and printer, that there is no real necessity for that prohibition. The book must be printed here. There is no possibility, under any conditions, of making it a profitable industry of sending editions across the Atlantic, to be bound outside of the United States, and back again. The binding of the copyrighted book will be done here. It is, however, the routine to utilize artistic binders in Paris, in Florence, and in Leipsic for the binding of individual copies of certain books, which are bound as a matter of artist designing. The American book is printed here, copyrighted here, and bound there, and of course it pays the duty. The trade is on the part not only of pub