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I shall preface my remarks with the statement that I represent no interests. I have no retainer. I am here partially from a selfish motive, and partially from a desire to assist the committee in what they have expressed to be their wish, to eliminate from the bill as it now stands certain features which they have intimated at the hearing this morning they consider objectionable. One of these is the control of the retail price by the owner of the copyright. I am not going to waste any time upon the subject of the propriety of granting a copyright owner any such power, but I wish to point out to the committee that the power to control that retail price by virtue of a copyright bill appears to be in the proposed bill in its present form to a greater, degree than in the present bill. The word I object to is the word vend" in the statute as it now stands, and as it is in the new bill in the very first sentence.
Representative CURRIER. Has not that been in every bill we have had, up to the present time?
Mr. WISE. Unquestionably it has, sir; that is the proper place for it; but there is one saving clause in the present bill as in every other; that is, that the right to vend is limited in our present law; it is defined.
In the section of the law as it stands to-day there is a statement that no person without the consent of the owner of the copyright, duly authorized, in the presence of two witnesses, shall print, publish, or import any portion of a copyrighted work, or sell the same, knowing that that copy is wrongfully printed or wrongfully imported, and a person doing so is held liable to damages.
Representative CURRIER. If it is a piratical edition, why not?
Mr. WISE. I have no objection to that. That is why I represent people who have for six years been struggling against that law, while an authorized edition sold by the publisher to the wholesaler and by him to us is claimed to be within the copyright law.
Representative CURRIER. And yet you have received complete protection from the courts, have you not?
Mr. WISE. No, sir; we have not. We are to-day before the Supreme Court of the United States, where the question is not yet decided. Representative CURRIER. Every decision rendered has been in your
Mr. WISE. On the question of copyright pure and simple the decision has been in our favor. But the point I wish to call attention to now is
Representative CURRIER. Will you call attention to the sections you object to, if more than one?
Mr. WISE. I am now calling attention to section 4964.
Representative CURRIER. Section 4952 is the present law, if you mean the present law.
Mr. WISE. 4964 is the section that imposes the penalty for violation, and 4970 is that which gives a court of equity the general power to restrain by injunction.
Representative CURRIER. What is the section that qualifies the word "vend" as found in all copyright laws?
Mr. WISE. There is none.
Representative CURRIER. What have we omitted that would qualify the word "vend?"
Mr. WISE. You have omitted a section which should define the word "vend." I have no objection to the wording of the bill at all if there is to be a section somewhere in the bill which will not make a man who sells a duly authorized copy liable to severe penalties for selling at less than other copies. I have pointed out this particular wording because I think the committee's attention has not been called to it. Representative CURRIER. It has not been called to it.
The CHAIRMAN. My attention was not called to it. One reason why I notified you, Mr. Wise, to appear before the joint committee was that you might call the committee's attention to this point and whatever else you thought proper.
Representative CURRIER. Will you formulate an amendment which will take care of the point?
Mr. WISE. I am satisfied with the present law-taking it right into the statute. The English law says what an infringement is.
Representative CURRIER. Suppose you should not prevail in your case before the Supreme Court?
Mr. WISE. I come here to the committee for relief, and I ask the committee to put into this proposed act such unmistakable language as that no court in the future will be in such a quandary as has been the case heretofore.
Representative LEGARE. Why not formulate an amendment to cover the needs?
Representative CURRIER. I would suggest that you formulate a section and make the matter clear.
Mr. WISE. I shall be glad to do so if you will give me a little time. The CHAIRMAN. You may reserve the right to formulate the proposed amendment and we will incorporate it in your remarks.
Representative CURRIER. Can you cite the English law which you say is satisfactory?
Mr. WISE. I can give you an extract from the section.
Representative CURRIER. If you can cite the section we shall be glad to have it.
Mr. WISE. I refer to section 2 of the copyright law of 1842, a portion of which reads as follows:
"The word copyright' shall be construed to mean the sole and exclusive liberty of printing or otherwise multipyling copies of any subject to which the said word is herein applied.'
Sections 15 and 17 expressly define what shall be an infringement, and I submit that an act which imposes such severe penalties as the proposed legislation should define and specify with great care what is an infringement.
Representative CURRIER. We hesitate to eliminate a word like the word" vend," which has appeared in all the copyright laws of the country. Of course, you know that the phraseology was very different in the first wording of the bill and that the committee cut that out and used the phraseology which has been used in every copyright bill that has ever passed Congress. Is it your suggestion that the word "vend" be taken out of the law?
Mr. WISE. No; but that the word be so limited and circumscribed that the man who sells an unauthorized copy shall not be punished as a pirate.
There is another point which has been claimed-it is not in the bill, but it has been claimed-your attention has never been called to it.
The association of publishers and booksellers has made the claim, and unfortunately it has been sustained by the courts, and I am quite convinced that the mere statement of that propositon will prove abhorrent to all the gentlemen of this committee; that is, that the owner of a copyright-the owner of a patent-because he has received a grant of monopoly from the Government has thereby also received a grant of power to combine with the owner of every other patent or copyright in the United States, separate and distinct, and by reason of the grant of monopoly he has become emancipated from the laws that govern trusts or combinations in restraint of trade. In the great State of New York Chief Judge Parker, of the court of appeals, has laid down the law which I hope will never be sustained, and which I think is erroneous, that the combination of the American Publishers' Association is illegal so far as it covers uncopyrighted books, but is legal as to copyrighted books. Was there ever a more monstrous decision?
Representative CURRIER. I understand this is the fact: That all the copyright owners of this country may combine in one great trust and that that can not be reached by any of the laws against trusts.
Mr. WISE. Yes; I think it is even greater than that. If I can have the attention of the committee, I can state the facts in the case which was decided in the Supreme Court last May, and which I am appealing now, where we sued the trusts on this question. It was held illegal, but the court said, "You can not get damages as to copyrighted books." In other words, they say, "You can not bay any books in the markets of the United States if the owners of the copyrights have combined. You are outlaws, and not only are you outlaws, but any man who sells to you is an outlaw."
I think there should be a provision in this law which will correct that. Judge Lacombe, of the United States court, has stricken out our answer, which set up the monopoly of the combination. He said it was impertinent; that it had nothing to do with the issues.
Scribners brought an action against us to restrain Macy & Co. from selling at a figure less than the figure they fixed. We set up, first, that they did not have the power under the copyright law to bring an action against us, and, secondly, that if they did have it, they had combined for the purpose of controlling the trade in copyright books and that that combination was illegal.
Representative WASHBURN. What is the citation?
Mr. WISE. That was in Scribners against Straus. I doubt if it is found in the reports. It was on a motion to strike out the pleadings as impertinent.
Representative WASHBURN. That case has been appealed?
Mr. WISE. Not that particular portion of it. The main question has been appealed; that is, the question whether the rule which Scribners adopted was in itself enforceable by virtue of the copyright law as against us.
Representative WASHBURN. What proposition would you like to incorporate in this bill touching that matter?
Mr. WISE. I would like a provision in this bill to the effect that nothing therein contained shall be construed as giving the owner of a copyright the right to enter into any combination in restraint of trade or in violation of the State or Federal anti-trust laws.
Representative WASHBURN. Those are two entirely distinct propositions-absolutely distinct.
Mr. WISE. They are to a certain extent. I tried to formulate my whole proposition as rapidly as possible at your suggestion. I have no amendment to offer except that I wanted to call the attention of the committee to the fact that that power, which I do not think exists, has been granted by judicial interpretation. I do not think that any Congress had ever thought that their grant of monopoly would be extended to such limits as it has been extended to.
Representative WASHBURN. Are you of the opinion that this same limitation ought to obtain in grants of patents?
Mr. WISE. Most assuredly. I think that, as Mr. Justice White on the argument in this case has said, no man in this land of ours should be endowed with what the circuit court of appeals said that in his domain the owner of a patent is a Czar, with autocratic powers, with the right to exclude whom he will, in the manner he will. I think that Justice White spoke for his associates when he said that that court would never subscribe to any such doctrine. I do not think the doctrine will find the support of that court.
Representative LEGARE. Will you prepare that amendment and bring it in at some time?
Mr. WISE. I will do so. I would like to have at least a day. Representative CURRIER. You may have two or three days. The record will not be made up very hurriedly.
The CHAIRMAN. Any time within a week.
Mr. WISE. There is a minor point to which I wish to call the attention of the committee; that is the second section of the statute, which is in the second section of this bill also.
Representative LEGARE. Which bill?
Mr. WISE. Senate bill 2499
That nothing in this act shall be construed to annul or limit the right of an author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent and to obtain damages therefor.
I would like to say that the rights of an author before publication are not under Federal jurisdiction as matter of rule. They are matter of State jurisdiction and interpretation. Each State has adopted different views, or many States have, as to what those rights are. But as the bill now stands, with this section included, there is one important point which is omitted which might give to copyright owners the very rights which you gentlemen seek to deny-by reason of the author's rights in an unpublished work. An important question is, what is an unpublished work? The Jewelers' Association of New York issued a trade directory annually. They made application for copyright, but did not complete it. They then applied for an injunction against a rival concern on the ground that they had not published the book, but only leased it to their several members. Afterwards they took the position that when they deposited the work with the Librarian of Congress the deposit constituted a publication at common law and that by reason of that deposit they had abandoned their common-law rights.
There is no principle more firmly established than that when copyright is secured it is in exchange for something that the author had
before, and he must abandon that in order to secure his copyright under the statute. Under this bill, unaccompanied by some means of stating that the attempt to secure copyright would be tantamount to publication at common law, there may be danger that there are two parallel lines that an owner of copyright may follow; because I think, although not quite sure, that there is no definition in this bill of the words " publish at common law."
Representative CURRIER. I think we have left that entirely to the
Mr. WISE. But State courts have decided that the publication is by filing a copy. So there the rights are preserved.
In this bill, as I understand it, as it now reads, there is no necessity for filing until demand is made and it may never be made.
Representative CURRIER. I have an impression that that will not be the form of the bill when it gets out.
Mr. WISE. The amendment which I have in mind is, I think, an important one, and would control probably the sale of books. I think some one, perhaps Mr. Fuller, has mentioned the matter before the committee. My idea is that it should be as near as possible to that section of the statute which imposes the penalty for infringement. The grant is in section 1, and the other provision is hidden away in section 44. There are 43 sections between.
ADDITIONAL STATEMENT OF MR. GEORGE HAVEN PUTNAM.
Mr. PUTNAM. Mr. Chairman and gentlemen of the committee, a gentleman on the other side spoke for over an hour this morning and went all over a large range of territory, from his idea of liberty to the business done by Putnam's Sons. There are certain things which I think tend to confuse the judgment and action of this committee.
The gentleman who spoke this morning began by laying claim to be the representative of the general public; the implication being that he was the only one here who did not represent some special interest and that the general public required him to appear in its defense. I think that it is an indignity to you gentlemen, because you are here as a court representing the general public, and I think their interests are perfectly safe in your hands. That gentleman gave prominence to the importance of securing for the people liberty of action. Liberty of action to do what?
With all possible allowance for the exuberance of oratory I point out that there are various kinds of liberty, and that some of them are not conducive to justice or to the interests of the community. Mr. Ogilvie thought he was entitled to liberty of action when he undertook to appropriate matter which had been put together with great labor by the Messrs. Merriam and that it was an infringement on his liberty not to be allowed to appropriate that matter. The Supreme Court held that that was a liberty of action that was undesirable for any citizen or for the interests of the public.
IVe want liberty, but liberty under the law, a liberty which does not involve action by any citizen that brings injustice on another citizen. That speaker said very frankly that he was speaking on his individual judgment. I remind you gentlemen that in the deliberations had in the hearings before your committee, and in the conferences, which,